Can I go to jail for online gambling?

No question that gambling online is appealing and convenient from your comfy coach in the living room. But individual players can potentially be committing a crime, inadvertently unaware that he or she has broken the law by playing. The problem is, that each state decides whether to legalize online gambling, and those statutes are not models of clarity or consistency.

Gambling penalties—including when you can be criminally prosecuted—differ vastly from state to state. As of November 2018, it looks like online gambling is illegal and that you as a player could potentially face criminal prosecution in: AK, AZ, AR, CO, CT, FL, GA, HI, ID, IL, IN, IO, KA, LA, MD, MA, MI, MN, MS, MO, MT, NB, NH, NM, NY, NC, OR, SD, TN, TX, UT, VT, VA, WA, WV, WI, WY. That is, 37 of 50 states, or almost 75%, could impose penalties on you for gambling online.

Background

Gambling is primarily regulated at the state level. That fact, plus the fact that the states possess what is called the “police power” (or authority to make and enforce laws for public safety and morality, such as criminal laws) means that each state is free to legalize online gambling or not; and if it’s not legal, to put whatever penalties it wants on it. Many states choose to only put criminal penalties on the gambling operator or provider, not the individual player–but that’s simply their choice. There is no legal principal barring states from criminalizing not just providing but simply playing online gambling games–which means that depending on the state, you could be criminally prosecuted for online gambling.

Therefore, it is absolutely vital to check the laws of the state before gambling online.

When might you be subject to prosecution?

There are two things determining if you could be subject to prosecution:

(1) In many, possibly most states, the state legislatures have written laws making some or many (or in Utah, all) types of gambling activities illegal, including online gambling. It is your responsibility as a player to check if the game you want to play falls under the state’s prohibition. To complicate this more, many of these statutes or laws are hardly models of clarity or good writing. Sometimes, interpretation is required to come to a conclusion about whether what you are doing could get you prosecuted or not.

(2) It’s not enough that some online gambling is allowed in your state. Only gambling on state-approved or -authorized websites is legal, and gambling on any online gambling site not licensed by your state would be illegal. Therefore, even if some online gambling is permitted, if you’re not gambling on an authorized site, you are violating the law. Fortunately, checking to see whether a gambling site is licensed or authorized is fairly straightforward.

The penalty phase

Gambling penalties are not created equal: there is no one-size-fits-all penalty.

Some states treat illegal gambling as a “disorderly” offense where there is no jail time possible, just a fine. Others, however, treat it as a misdemeanour, which means in addition to a larger fine, you could potentially be jailed for days, weeks, or even possibly months (not more than a year). At this time, no states appear to have made gambling illegally as a player a felony, which carries far more severe illegal sports gambling punishments.

A fine, especially the smaller ones that some states provide for (such as Vermont, where the fine appears to top out at $200), can be seen almost as a “cost of doing business”. You most likely won’t be caught and prosecuted, and if you are, well paying a $200 fine is less than you’d pay in travel and hotel costs to go from Vermont to, say, Atlantic City, New Jersey, to gamble. The “criminal prosecution” in that state or other ones that only fine you may not be much of a disincentive.

But other states may send you to jail if you are caught gambling illegally, including online. Oregon, for example, makes any gambling not specifically authorized or licensed by the state (which includes online gambling) a Class A misdemeanour, which means you could potentially get up to a year in jail.

Gambling carries risk, both in the act itself and in its legal status. Is it worth the legal risk of criminal prosecution to you? That could raise the stakes of the game a bit.