The case was argued before the six-member high court on Tuesday, a couple miles from The Rivers Casino, 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.
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 Eisenberg's case, the fine was "375 times the value of what was stolen," Santicola argued before the court, which was sitting in Pittsburgh. Had 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.
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," Santicola told the justices, referring to his hopes they'll strike down the law. "But we think it is a walk worth taking."
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 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."
Constantine told the court she had researched the legislative history of the statute and was told by one lawmaker that the stiff fines were enacted to address concerns by lawmakers who opposed gambling and were concerned about its ill-effects in their districts. "They want to discourage any perception of illegality," Constantine said.
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.
"If the fine in this case were $750,000, would it change your argument?" Baer asked Constantine. "The challenge for this court is what constitutes an excessive fine."
Baer turned that question on its head in asking Santicola how small the mandatory fine could be before it wouldn't be excessive. Santicola suggested a mandatory minimum of $5,000 to discourage any casino thefts, and said larger amounts could be imposed depending on the amount stolen.
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 cut to the heart of the case when he asked 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 they strike down the penalty.
"We're not going to solve it. We're going to let somebody else solve it if we rule in your favor," Castille told Santicola.
Justice J. Michael Eakin offered another option—a sort of legal roulette—in jest.
"I think you take the $200 bucks, put it on red, and let it ride until you get $75,000," Eakin said.