The Pennsylvania Supreme Court has been asked to find that a mandatory $75,000 fine imposed on a Pittsburgh casino poker dealer who stole $200 worth of chips was "excessive" under the state constitution or "cruel and unusual punishment" under the U.S. Constitution.
The case was argued before the six-member high court on Tuesday, a couple of miles from The Rivers Casino on the North Shore, where Matthew Eisenberg, 27, was charged with sneaking $1 or $5 poker chips off the table and sliding them into his tip box on 108 occasions, for a total combined theft of $200.
Mr. Eisenberg's attorney, Michael Santicola, is representing him for free because he believes the statute -- which imposes a minimum fine of $75,000 and up to $150,000 for stealing even $1 from a casino -- is wrong-headed.
In Mr. Eisenberg's case, the fine was "375 times the value of what was stolen," Mr. Santicola argued before the court, which was sitting in Pittsburgh. Had Mr. Eisenberg pleaded guilty to stealing the same amount from anyone other than a casino, he would have faced no more than a $10,000 fine, with no mandatory minimum.
Mr. Santicola argued that the casino theft statute -- or at least the mandatory fine it carries -- is unconstitutional and should be struck down.
"We realize this is an uphill battle," Mr. Santicola told the justices, referring to his hopes they'll strike down the law. "But we think it is a walk worth taking."
Mr. Santicola argued that determining whether a fine is "excessive" is similar to the way former U.S. Supreme Court Justice Potter Stewart defined pornography: "We know it when we see it. Well, we see it in this case."
Allegheny County Assistant District Attorney Amy Constantine argued what her office has said ever since Mr. Eisenberg pleaded guilty and was fined in July 2011, nine months after he was charged with the thefts: "The fine clearly exists both to punish and deter thefts within casinos."
Ms. Constantine told the court the stiff fines were enacted to address concerns by lawmakers who opposed gambling and were concerned about its ill-effects in their districts.
But Justice Max Baer noted that since the constitution spells out that some fines can be excessive, the question isn't whether the General Assembly can try to discourage behavior with large fines but, rather, whether it went too far in this instance.
Mr. Santicola also argued that state lawmakers were wrong to single out casinos, noting, "If I stole $1 from a lottery machine, I'm not punished $75,000."
Chief Justice Ronald Castille asked Mr. Santicola, "So, under your argument, we would have to declare the fine part of the statute unconstitutional?"
The justices made clear they don't expect to dictate a new limit, but would leave that to the Legislature if it strikes down the penalty.