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Should Antoine Walker Be Arrested for Bouncing Checks? (Should You?)—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on July 21, 2009.

Should Antoine Walker Be Arrested for Bouncing Checks? (Should You?)
By Ian Ayres ’86

I’m troubled by news reports that Antoine Walker was arrested for writing $1,000,000 in bad checks. The ex N.B.A. star — Employee Number 8 — was forced to do a perp walk as he apparently was led out of Harrah’s Tahoe in handcuffs. The criminal complaint alleges that from July 27 to January 19, he wrote 10 separate $100,000 checks with insufficient funds to Caesars Palace, Planet Hollywood, and Red Rock Resort.

Writing a check that you never intend to pay is a crime — and appropriately so. But it is crucial that prosecutions be limited to circumstances where there is proof beyond reasonable doubt that the writer at the time of writing never intended to pay. In the beautiful legal language of the New York Bad Check law: “[t]he prosecution must be able to plead and prove an intent by a defendant to utter a worthless check at the time it is uttered, not by the mere happenstance of subsequent insufficient funds.”

When you write a check, you utter — that is represent — that there are sufficient funds in the account and that you intend to have your bank pay the written amount.

It’s difficult but not impossible for the prosecution to present evidence of this bad intent. If a defendant writes checks on a bank account she knows has been closed, or if she writes checks far beyond her means of ever repaying, there can be a strong inference that she never intended to pay.

But Nevada has followed the worrisome trend of presuming an intent to defraud merely from the fact of insufficient funds. Amazingly, the Nevada Bad Check law declares:

The maker of a bad check is presumed to have intent to defraud if the check is drawn on an account which does not exist, if he failed to pay the holder of the bad check the full amount due plus any handling charges within five days after receiving notice that the check is dishonored, or if the notice of refusal of payment sent to the maker by registered or certified mail at an address printed or written on the check is returned because of non delivery. (NRS 205.132.)

Under this provision, if you bounce a check and don’t make it good within five days, you are presumed to have intended to defraud the payee and can be subject to criminal punishment. This presumption is unconscionably broad. If you mistakenly thought that you had enough money in your account and then find that you do not, you can go to jail. I’ve bounced checks by mistake in the past, and this presumption scares the bejabbers out of me.

To add insult to injury, Walker, besides paying off the original debt, “now owes the District Attorney’s office $82,550 in fees for taking on the criminal prosecution, which the three casinos requested.” There is an irony here. The defrauding presumption relieves the prosecutor of any real difficulty in making a case, but nonetheless the prosecutor claims a bounty that quickly turns prosecution into a profit center.

I should disclose that I’m somewhat obsessed with the law of misrepresented intention. Greg Klass and I in fact wrote an entire book about it, called Insincere Promises, which includes a chapter on the crime of false promise and the over-broad bad check presumptions. The book’s cover photograph of crossed fingers behind the back symbolically captures what should be the crucial element of the prosecution’s case — the moment the defendant promises something that he or she intends not to do.

The prosecution of bad checks when the payee is a casino is particularly troubling. Six of the checks were made out to Caesars Palace. Was Caesars really defrauded when the 4th or 5th came back showing insufficient funds? In a world with debit cards, is it really necessary to accept checks?

It would be one thing to go after Walker for writing bad checks to a grocery store or a dry cleaner. But do we really need to use the state to help collect casinos’ bad debts?

We might do better to prohibit casinos from accepting checks as payments — or at least prohibiting them from trying to collect on them if they show insufficient funds. If casinos couldn’t collect on bounced checks, I imagine that casinos would stop accepting as many checks as a method of payment. But this might be a good thing. Taking the gambling profession out of the business of lending money to gamblers might mitigate some of the tragedy of problem gambling.