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|The Wickersham Commission Report on Alcohol Prohibition - 1930|
Report on the Enforcement of the Prohibition Laws of the United States
National Commission on Law Observance and Enforcement
Dated January 7, 1931
III. BAD FEATURES OF THE PRESENT SITUATION AND DIFFICULTIES IN THE WAY OF ENFORCEMENT
As to corruption it is sufficient to refer to the reported decisions of the courts during the past decade in all parts of the country, which reveal a succession of prosecutions for conspiracies, sometimes involving the police, prosecuting and administrative organizations of whole communities; to the flagrant corruption disclosed in connection with diversions of industrial alcohol and unlawful production of beer; to the record of federal prohibition administration as to which cases of corruption have been continuous and corruption has appeared in services which in the past had been above suspicion; to the records of state police organizations; to the revelations as to police corruption in every type of municipality, large and small, throughout the decade; to the conditions as to prosecution revealed in surveys of criminal justice in many parts of the land; to the evidence of connection between corrupt local politics and gangs and the organized unlawful liquor traffic, and of systematic collection of tribute from that traffic for corrupt political purposes. There have been other eras of corruption. Indeed, such eras are likely to follow wars. Also there was much corruption in connection with the regulation of the liquor traffic before prohibition. But the present regime of corruption in connection with the liquor traffic is operating in a new and larger field and is more extensive.
THE BAD START AND ITS RESULTS
Too often during the early years of prohibition were arrests made and prosecutions instituted without sufficient evidence to justify them. In very many instances, unwarranted searches and seizures were made, which resulted in the refusal by Commissioners to issue warrants of arrest, or in the dismissal of the prosecution by the courts. In many instances, the character and appearance of the prohibition agents were such that the United States attorney had no confidence in the case and juries paid little attention to the witnesses. Thus some of the most important causes were lost to the Government. On the other hand, the prohibition agents were more concerned to secure a large number of arrests or seizures than to bring to the District Attorneys carefully prepared cases of actual importance. It is safe to say that the first seven years' experience in enforcing the law resulted in distrust of the prohibition forces by many of the United States attorneys and judges.
It must be said that enforcement of the National Prohibition Act made a bad start which has affected enforcement ever since. Many things contributed to this bad start.
(a) The Eighteenth Amendment was submitted and ratified during a great war. The National Prohibition Act was passed immediately thereafter. During a period of war the people readily yield questions of personal right to the strengthening of government and the increase of its powers. These periods are always characterized by a certain amount of emotionalism. This was especially true of the World War. These enlargements of governmental power, at the expense of individual rights are always followed by reactions against, the abuses of that power which inevitably occur. Periods following great wars are generally characterized by social discontent and unrest which frequently culminate in peaceful or violent revolutions. We have been passing through this secondary phase.
The Eighteenth Amendment and the National Prohibition Act came into existence, therefore, at the time best suited for their adoption and at the worst time for their enforcement. The general reaction against and resentment of the powers of government was inevitable. It could not fail to find expression in opposition to those laws which affected directly and sought in large measure to change the habits and conduct of the people. This attitude has been manifest in the non-observance and resistance to the enforcement of the prohibition laws.
The ratification of the Amendment was given by legislatures which were not in general elected with any reference to this subject. In many instances, as a result of old systems of apportionment. these legislative bodies were not regarded as truly representative of all elements of the community. When ratifications took place a considerable portion of the population were away in active military or other service. It may be doubted if under the conditions then prevailing the results would have been any different if these things had not been true yet these circumstances gave grounds for resentment which has been reflected in the public attitude toward the law and has thus raised additional obstacles to observance and enforcement.
(b) In the second place, the magnitude of the task was not appreciated. It seems to have been anticipated that the fact of the constitutional amendment and federal statute having put the federal government behind national prohibition would of itself operate largely to make the law effective. For a time, there appeared some warrant for this belief. For a time, uncertainty as to how far federal enforcement would prove able to go, lack of organization and experience on the part of law breakers, and perhaps some accumulated private stocks and uncertainty as to the demand and the profits involved, made violations cautious, relatively small in volume, and comparatively easy to handle. But soon after 1921 a marked chance took place. It became increasingly evident that violation was much easier and enforcement much more difficult than had been supposed. The means of enforcement provided proved increasingly inadequate. No thorough-going survey of the difficulties and consideration of how to meet them was undertaken, however, until violations had made such headway as to create a strong and growing public feeling of the futility of the law.
(c) A third cause was lack of experience of federal enforcement of a law of this sort. The subjects of federal penal legislation had been relatively few and either dealt with along well settled common law lines, or narrowly specialized. There was no federal police power and the use of federal powers for police purposes became important only in the present century. The existing federal machinery of law enforcement had not been set up for any such tasks and was ill adapted to those imposed upon it by the National Prohibition Act. But it was sought to adapt that machinery, or to let it find out how to adapt itself, without much prevision of the difficulties. Inadequate organization and equipment have resulted.
(d) A fourth cause which had serious incidental effects was the attempt to enforce the National Prohibition Act as something on another plane from the law generally; an assumption that it was of paramount importance and that constitutional guarantees and legal limitations on agencies of law enforcement and on administration must yield to the exigencies or convenience of enforcing it.
Some advocates of the law have constantly urged and are still urging disregard or abrogation of the guarantees of liberty and of sanctity of the home which had been deemed fundamental in our policy. In some states concurrent state enforcement made an especially bad start with respect to searches and seizures, undercover men, spies and informers; and by the public at large the distinction between federal and state enforcement officers was not easily made. Moreover, the federal field force as it was at first, was largely unfit by training, experience, or character to deal with so delicate a subject. High-handed methods, shootings and killings, even where justified, alienated thoughtful citizens, believers in law and order. Unfortunate public expressions by advocates of the law, approving killings and promiscuous shootings and lawless raids and seizures and deprecating the constitutional guarantees involved, aggravated this effect. Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizure on the part of incompetent or badly chosen agents started a current of adverse public opinion in many parts of the land.
(e) Another cause was the influence of politics. No doubt this influence of politics is inevitable in any connection where very large sums of money are to be made by manipulation of administration, and where control of patronage and through it of interference or noninterference with highly profitable activities may be made to yield huge funds for political organizations and as means to political power. In the enforcement of prohibition politics intervened decisively from the beginning, both in the selection of the personnel of the enforcing organization and in the details of operation. This political interference was particularly bad some years ago in connection with the permit system. When inquiry was made into large scale violations, when permits were sought by those not entitled to them, when attempt was made to revoke permits which had been abused, recourse was frequently had to local politicians to bring to bear political pressure whereby local enforcement activities were suspended or hampered or stopped. Nor was this the only source of interference. For some time over-zealous organizations, supporting the law, brought pressure to bear with respect to personnel and methods and even legislation which had unfortunate results. Only in the last few years has enforcement been reasonably emancipated from political interference.
(f) Constant changes in the statute and in the enforcing organization have also had an unfortunate effect. In eleven years the statute was amended or added to in important particulars four times. In that time the central organization as set up originally has twice been changed radically. In that same period the system of permits in connection with industrial alcohol has been changed three times. In consequence it may be claimed with good reason that administration of the law has not been as effective as it might have been.
(g) Another cause, which must not be overlooked, is lack of administrative technique in connection with the tribunals set up under the law. The National Prohibition Act gives to the supervisors of industrial alcohol powers of granting, renewing, and revoking permits -which may involve large investments and no inconsiderable businesses. Thus a system of administrative tribunals has been set up to pass on what may amount to very important property rights. The operation of administrative tribunals of all kinds, necessary as they obviously are, is giving serious concern, largely because of their lack of technique and lack of experience and the inherent difficulty of providing effective control. Perhaps nowhere are the results of this lack of technique more apparent than in connection with the administrative tribunals under the National Prohibition Act.
In some places administrative hearings with respect to permits are carried on as quasi-.judicial proceedings, with the dignity of a court and with judicial methods. In others there is no settled procedure or systematic conduct of the proceedings, and in consequence there is want of uniformity, want of predictability, and often not a little dissatisfaction. In consequence there has been much variation in the attitude of the federal courts towards these tribunals. Where the courts have not supported or are not supporting the decisions of the administrators, it will be found as a rule, that the administrative tribunals in that particular locality are not, or until very recently were not, such in their personnel or in their procedure as to command judicial confidence. The evil that some of these tribunals did in the past lives after them in an unfortunate judicial attitude toward administration of the permit system in more than one important center.
(h) Another cause was lack of coordination of the several federal agencies actually or potentially concerned in enforcing prohibition, and consequent relative failure of cooperation until attention was given to this matter within the past few years.
Federal administration has always been more unified than that of the states. Yet friction and want of cooperation in law enforcement, as between different bureaus or services whose functions bear on the same fields or overlap, has been a common phenomenon which the exigencies of enforcing prohibition have merely made more prominent. Want of traditions of cooperation and departmental or bureau esprit de corps made it unlikely that services organized in different departments would cooperate heartily; and the services among which cooperation was to be promoted were distributed in the Department of the Treasury, the Department of Justice, the Department of Agriculture, and the Department of Labor. But even when the different agencies were in the same department, our traditions of independent individual administration led to habits or tendencies of non-cooperation among administrative bureaus. In some localities not long since there was often friction, and more often want of sympathetic common action between the customs authorities and the prohibition agents. There is evidence before us of "occasional co-operation" between the prohibition and the narcotic and immigration services as recently as a year ago. It is not much more than a year since a coordinator of the customs border patrol, coast guard and prohibition agencies was set up at one of the most important centers of importation of liquor in the United States. But for a decade those services were under one department.
When the services are organized in different departments, want of cooperation is even more to be expected. Before transfer of prohibition enforcement to the Department of Justice, there was not infrequent lack of cooperation between United States marshals and prohibition administrators. Within a year, in some places, there has been lack of cooperation between United States attorneys and prohibition administrators. Not long ago there was often much want of accord between them and even sometimes public disagreement. Recently there was want of cooperation between the prohibition administrator, or his agents, and agents of the Department of Agriculture in a section where enforcement is particularly difficult.
Thus enforcement has fallen short of what it should have been partly because of this tradition and these habits of non-cooperation between department and department, bureau and bureau, and service and service. But non-cooperative federal enforcement had gone on for a decade before much was done to co-ordinate the different federal activities and bring them into some unified system.
(i) Finally, enforcement was relied on in and of itself without any reinforcing activities to promote observance. After the passing of the National Prohibition Act, the educational activities toward a public opinion opposed to the use of intoxicating liquor gradually lost their impetus and largely became dormant. For a decade little or nothing has been done in this connection although such activities were peculiarly needed in an era of relaxing of standards of conduct and general free self-assertion. As a result too heavy a burden was put upon enforcement from the beginning and during the critical period in its history.
THE STATE OF PUBLIC OPINION
From the beginning ours has been a government of public opinion. We expect legislation to conform to public opinion, not public opinion to yield to legislation. Whether public opinion at a given time and on a given subject is right or wrong is not a question which according to American ideas may be settled by the words, "be it enacted." Hence it is futile to argue what public opinion throughout the land among all classes of the community ought to be in view of the Eighteenth Amendment and the achieved benefits of national prohibition. So long as state cooperation is required to make the amendment and the statute enforcing it effectual, adverse public opinion in some states and lukewarm public opinion with strong hostile elements in other states are obstinate facts which can not be coerced by any measures of enforcement tolerable under our polity. It is therefore a serious impairment of the legal order to have et national law upon the books theoretically governing the whole land and announcing a policy for the whole land which public opinion in many important centers will not enforce and in many others will not suffer to be enforced effectively. The injury to our legal and political institutions from such a situation must be weighed against the gains achieved by national prohibition. Means should be found of conserving the gains while adapting, or making it possible to adapt, legislation under the amendment to conditions and views of particular states.
Improved personnel and better training of federal enforcement agents under the present organization may well effect some change in public opinion, especially in localities where indignation has been aroused by crude or high handed methods formerly in vogue. But much of this indignation is due, to the conduct of state enforcement, which affects opinion as to enforcement generally. A change in the public attitude in such localities should follow an overhauling of state agencies.
We are not now concerned with the various theories as to prohibition, or with public opinion thereon, except as and to the extent that they are existing facts and causes affecting law observance and enforcement.
It is axiomatic that under any system of reasonably free government a law will be observed and may be enforced only where and to the extent that it reflects or is an expression of the general opinion of the normally law-abiding elements of the community. To the extent that this is the case, the law will be observed by the great body of the people and may reasonably be enforced as to the remainder.
The state of public opinion, certainly in many important portions of the country, presents a serious obstacle to the observance and enforcement of the national prohibition laws.
In view of the fact, however, that the prohibition movement received such large popular support and the Eighteenth Amendment was ratified by such overwhelming legislative majorities, inquiry naturally arises as to the causes of the present state of public opinion. There appear to be many causes, some arising out of the structure of the law the conditions to which it was to be applied, and the methods of its enforcement. Others, inherent in the principle of the act, may now be stated.
The movement against the liquor traffic and the use of intoxicating liquors for beverage purposes was originally a movement for temperance. The organizations which grew out of this movement and were potent in its development, were generally in their inception temperance organizations having as their immediate objectives the promotion of temperance in the use of alcoholic beverages and, as a means to this end, the abolition of the commercialized liquor traffic and the licensed saloon, which were the, obvious sources of existing abuses. In many of those states where prohibition laws were adopted and saloons abolished, provision was made for the legal acquisition of limited amounts of alcoholic liquors for beverage purposes. It was only when the Eighteenth Amendment was adopted that total abstinence was sought to be established by fiat of law throughout the territory of the United States or even in many of those states which had adopted limited prohibition laws.
There are obvious differences, both as to individual psychology and legal principle, between temperance and prohibition. Temperance assumes a moderate use of alcoholic beverages but seeks to prevent excess. Even though the ultimate objective may be total abstinence, it seeks to attain that objective by the most effective regulation possible and by the education of the individual to the avoidance of excess and gradual appreciation of the benefits of abstinence. To those holding this view, the field of legitimate governmental control over personal conduct is limited accordingly. Prohibition makes no distinction between moderate and excessive use. It is predicated upon the theory that any use of alcoholic liquors for beverage purposes, however, moderate and under any conditions, is antisocial and so injurious to the community as to justify legal restraint. To those who entertain this view the effort to enforce universal total abstinence by absolute legal mandate is logical. There is, therefore, a fundamental cleavage in principle between those who believe in temperance and those who believe in prohibition which it is difficult to reconcile under the traditional American attitude toward the law already discussed.
When the original temperance movement developed into one for prohibition, the immediate objective was the abolition of the commercialized liquor traffic and the legalized saloon. As between the alternatives of supporting prohibition or the saloon, those who favored the principle of temperance naturally supported prohibition; and, by a combination of the two groups, brought about the adoption of the Eighteenth Amendment and the National Prohibition Act.
When these measures became operative the situation was changed. The legalized liquor traffic and open saloon were abolished, and few desire their return. The question was no longer one between prohibition and the saloon but whether prohibition or the effort to enforce universal total abstinence by legal mandate was sound in principle or was the best and most effective method of dealing with the problem. On this question there was an immediate and inevitable cleavage between those who believed in prohibition and those who believed in temperance. Those who favored prohibition on principle naturally supported the law and demanded the most vigorous measures for its enforcement. Those who favored temperance on principle, while regarding the abolition of the legalized traffic and the saloon as a great and irrevocable step forward, yet looked upon the effort to require and enforce the total abstinence upon all the people, temperate and intemperate alike, by legal mandate, as unsound in principle and an unwarranted extension of governmental control over personal habits and conduct. They recognized and insisted upon the exercise of the right of the government to regulate and control the production, handling, and use of intoxicating liquors to the full extent necessary to prevent excessive use or other conduct which would be injurious to others or the community, but did not approve of the attempt to extend that power to the prevention of temperate use under conditions, not, in their view, injurious or antisocial. The abolition of the commercial traffic and the open saloon were so obviously steps in the right direction that for a time many of those holding this view acquiesced in the law or gave it passive support, but as its operations became more manifest and methods and efforts of enforcement developed, this acquiescence or indifference changed into non-observance or open hostility. Thus an ever widening difference was developed between those groups who by their united efforts for the abolition of the saloon had made possible the adoption of the Amendment and the National Prohibition Act.
Of course, there had been at all times a very substantial portion of the normally law-abiding people who had actively opposed the Eighteenth Amendment on principle. Many of these accepted and observed the law when once it was passed. When it became apparent that the results expected were not being realized, when the effects of the operations of the law and of the methods of enforcement which they deemed invasions of private rights became manifest, their opposition became aroused. This opposition was now, for reasons stated above, largely increased from the ranks of those who had formerly supported the law to get rid of the saloons, but felt that it went too far-who really favored the principle of temperance but did not favor prohibition. The cumulative result of these conditions was that from its inception to the present time the law has been to a constantly increasing degree deprived of that support in public opinion which was and inessential for its general observance or effective enforcement.
Another type of difficulties are economic. Something has been said already of those involved in ease of production. The constant cheapening and simplification of production of alcohol and of alcoholic drinks, the improvement in quality of what may be made by illicit means the diffusion of knowledge as to how to produce liquor and the perfection of organization of unlawful manufacture and distribution have developed faster than the means of enforcement. But of even more significance is the margin of profit in smuggling liquor, in diversion of industrial alcohol, in illicit distilling and brewing, in bootlegging, and in the manufacture and sale of products of which the bulk goes into illicit or doubtfully lawful making of liquor. This profit makes possible systematic and organized violation of the National Prohibition Act on a large scale and offers rewards on a par with the most important legitimate industries. It makes lavish expenditure in corruption possible. It puts heavy temptation in the way of everyone engaged in enforcement or administration of the law. It affords a financial basis for organized crime.
A different type of difficulties may be called geographical. For one thing the proximity of sources of supply from the outside along almost 12,000 miles of Atlantic, Pacific and Gulf shore line, abounding in inlets, much of it adjacent to unoccupied tracts offering every facility to the smuggler, speaks for itself. But in addition the chief sources of supply from the outside are immediately accessible along nearly 3,000 miles of boundary on the Great Lakes and connecting rivers. Likewise we must take account of 3,700 miles of land boundaries. Our internal geography affords quite as much difficulty. Mountainous regions, such swamp areas as the Dismal Swamp and the Everglades islands in the great rivers such as the Mississippi, forested regions and barrens, are everywhere in relatively close proximity to cities affording steady and profitable markets for illicit liquor. Here also are the best of opportunities for unlawful manufacture.
What may be called political difficulties grow out of the limits of effective federal action in our polity, the need of state cooperation and the many factors operating against it, the tradition of politics and political interference in all administration, and the tendency to constant amendment of the law to be enforced.
It must be borne in mind that the federal government is one of limited powers. Except as granted to the United States or implied in those granted, all powers are jealously reserved to the state. Certain traditional lines of federal activity had become well developed and understood. Policing, except incidental to certain relatively narrow and specialized functions of the general government was not one of them. Importation, transportation across state lines, and the enforcement of excise tax laws were natural subjects of federal action. But prohibition of manufacture, distribution and sale within the states had always been solely within the scope of state action until the Eighteenth Amendment. This radical change in what had been our settled policy at once raised the question how far the federal government, as it was organized and had grown up under the Constitution, was adapted to exercise such a concurrent jurisdiction.
Nor was it merely that a radical change was made when the federal government was given jurisdiction over matters internal in the states. It was necessary also to adjust our federal polity to a conception of two sovereignties, each engaged independently in enforcing the same provision, so that, as it was supposed, wherever and whenever the one fell down the other might step in. Endeavor to bring about a nationally enforced universal total abstinence, instead of limiting the power devolved on the federal government to those features of the enforcement of the amendment which were naturally or traditionally of federal cognizance, invited difficulty at the outset. But difficulties inhered also in the conception of the amendment that nation and state were to act concurrently, each covering the whole of the same ground actually or potentially; each using its own governmental machinery at the same time with the other in enforcing provisions with respect to which each had a full jurisdiction.
There are four possibilities in such a situation (1) a strong, centralized, well-organized federal police; (2) full voluntary cooperation between state and nation; (3) a voluntary petition between state and nation in which each may be relied on to carry out zealously the part assigned to it, and (4) abdication of part, leaving to the states, if they care to exercise it full control over the field which the nation surrenders.
Attempts to bring about and maintain the requisite cooperation between national and state enforcement of prohibition encounter adverse public opinion in many important localities and are hampered by a bad tradition as to cooperation of state and federal governments and by irritation in communities which feel that the ideas of conduct and modes of life of other communities are being forced upon them.
We have a long tradition of independence of administrative officials and systematic decentralizing of administration. In consequence disinclination to cooperate has pervaded our whole polity, local, state, and federal; and for historical reasons since the Civil War there has been more or less latent, or even open, suspicion or jealousy of federal administrative agencies on the part of many of the states. Concurrent state and federal prohibition has shown us nothing new. It has repeated and recapitulated in a decade the experience of 140 years of administration of nation-wide laws in a government. In the beginnings of the federal government, it was believed that state officials and state tribunals could be made regularly available as the means of enforcing federal laws. It was soon necessary to set up a separate system of federal magistrates and federal enforcing agencies. We had no traditions of concerted action between independent governmental activities and it was not until the World War that we succeeded in developing a spirit of cooperation at least for the time being. In spite of that experience, the Eighteenth Amendment reverted to the policy of state enforcement of federal law, and again there has been not a little falling down of enforcement between concurrent agencies with diffused responsibility. The result was disappointing. Too frequently there has been a feeling, even in states which had prohibition laws before the National Prohibition Act, that enforcement of prohibition was now a federal concern with which the state need no longer trouble itself. Thus there has often been apathy or inaction on the part of state agencies even where local sentiment was strong for the law. It is true the good sense and energy of some prohibition directors and vigorous action on the art of some state executives have at times brought about a high degree of cooperation in more than one jurisdiction. Sometimes this cooperation is local and fitful, sometimes and in some places it is complete, and sometimes it is well organized and coordinated. But there are no guaranties of its continuance.
It seems now to be the policy of federal enforcement to make on its own motion a partition of the field, leaving all but interstate combinations and commercial manufacture to the state. This relinquishing of much of the field of concurrent jurisdiction, to be taken on by the states or not as they see fit, is a departure from the program of the Eighteenth Amendment.
All administration in the United States must struggle with a settled tradition of political interference. At the outset of enforcement of prohibition, the choice of enforcement agents was influenced for the worse both by politicians and by pressure of organizations. Positions in the enforcement organization were treated from the standpoint of patronage. Since the magnitude of the task could not have been appreciated, it was assumed that methods of filling federal administrative positions -which had on the whole sufficed as to other laws would suffice here. Thus the enforcement organization at first was not at all what the task called for. Moreover, political interference went beyond the filling of positions in the administrative organization. There was constant complaint of interference by politicians with the granting and revoking of permits, with efforts at enforcement and with the details of administration. Political interference has decreased, but as our institutions are organized and conducted, it will always be a menace to effectual enforcement.
A number of causes of resentment or irritation at the law or at features of its enforcement raise difficulties for national prohibition. A considerable part of the public were irritated at a constitutional "don't" in a matter where they saw no moral question. The statutory definition of 'intoxicating" at a point clearly much below what is intoxicating in truth and fact, even if maintainable as a matter of legal power, was widely felt to be arbitrary and unnecessary. While there was general agreement that saloons were wisely eliminated, there was no general agreement on the universal regime of enforced total abstinence. In consequence many of the best citizens in every community, on whom we rely habitually for the upholding of law and order, are at most lukewarm as to the National Prohibition Act. Many who are normally law-abiding are led to an attitude hostile to the statute by a feeling that repression and interference with private conduct area carried too far. This is aggravated in many of the larger cities by a feeling that other parts of the land are seeking to impose ideas of conduct upon them and to mold city life to what are considered to be their provincial conceptions.
Other sources of resentment and irritation grow out of incidents of enforcement. In the nature of things it is easier to shut up the open drinking places and stop the sale of beer, which was drunk chiefly by working men, than to prevent the wealthy from having and using liquor in their homes and in their clubs. Naturally when the industrial benefits of prohibition are pointed out, laboring men resent the insistence of employers who drink that their employees be kept from temptation. It is easier to detect and apprehend small offenders than to reach the well organized larger operators. It is much easier to padlock a speakeasy than to close up a large hotel where important and influential and financial interests are involved. Thus the law may be made to appear as aimed at and enforced against the insignificant while the wealthy enjoy immunity. This feeling is reinforced when it is seen that the wealthy are generally able to procure pure liquors, where those with less means may run the risk of poisoning through the working over of denatured alcohol or, at best, must put up with cheap, crude, and even deleterious products. Moreover, searches of homes, especially under state laws, have necessarily seemed to bear more upon people of moderate means than upon those of wealth or influence. Resentment at crude methods of enforcement, unavoidable with the class of persons employed in the past and still often employed in state enforcement, disgust with informers, snoopers, and under-cover men unavoidably made use of if a universal total abstinence is to be brought about by law, and irritation at the inequalities of penalties, even in adjoining districts in the same locality and as between state and federal tribunals -- something to be expected with respect to a law as to which opinions differ so widely -- add to the burden under which enforcement must be conducted.
Resentment is aroused also by the government's collecting income tax from bootleggers and illicit manufacturers and distributors upon the proceeds of their unlawful business. This has been a convenient and effective way of striking at large operators who have not returned their true incomes. But it impresses many citizens as a legal recognition and even licensing of the business, and many who pay income taxes upon the proceeds of their legitimate activities feel strongly that illegitimate activities should be treated by the government as upon a different basis.
Any program of improvement should seek to obviate, or at least reduce to a minimum, these causes of resentment and irritation.
It will be perceived that some of them are due to differences of opinion as to total abstinence and could only be eliminated by bringing about a substantial unanimity on that subject throughout the land, or by conceding something to communities where public opinion is adverse thereto. Others are due largely to inherent features of all enforcement of law which have attracted special attention in connection with a matter of controversy. These may be met in part by improvements in the machinery of enforcement, by improvements in the general administration of criminal justice, and by unifying or reconciling public opinion, Still others are due to unfortunate but to no small extent remediable incidents of enforcement. Federal enforcement has been steadily improving in this respect. If state enforcement agencies in many jurisdictions could be similarly improved, the effect ought to be seen presently in a more favorable public opinion.
THE STRAIN ON COURTS, PROSECUTING MACHINERY, AND PENAL INSTITUTIONS
Our federal organization of courts and of prosecution were ill adapted to the task imposed on them by the National Prohibition Act. Serious difficulties at this point soon became apparent and enforcement of national prohibition still wrestles with them. The program of concurrent federal and state enforcement imposes a heavy burden of what was in substance the work of police courts upon courts set up and hitherto employed chiefly for litigation of more than ordinary magnitude. In the first five years of national prohibition, the volume of liquor prosecutions in the federal courts had multiplied by seven and federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total number of all pending federal prosecutions in 1914. In a number of urban districts the enforcement agencies maintain that the only practicable way of meeting this situation with the existing machinery of federal courts and prosecutions is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead quilt to minor offenses and escape with light penalties. Hence a disproportionate number of federal liquor prosecutions terminate in pleas of guilty: In the year ending June 30, 1930, over eight-ninths of the convictions were of this character. Since enactment of the Increased Penalties Act, 1929, prosecutors have proceeded by information for minor offenses in most cases, thus facilitating the bargain method of clearing the dockets. During the year ending June 30, 1930, whereas for the federal courts as a whole 41.4 per cent of the convictions resulted in sentences to some form of imprisonment, in three urban districts in which there was obvious congestion the percentages were 6.3, 3.9 and 5.0, respectively. The meagerness of the result in proportion to the effort shows the seriousness of the difficulty under which the enforcement of national prohibition has been laboring. But this is not all. The bargain method of keeping up with the dockets which prevails of necessity in some of the most important jurisdictions of the country, plays into the hands of the organized illicit traffic by enabling it to reckon protection of its employees in the overhead. In some of our largest cities sentences have been almost uniformly to small fines or trivial imprisonment. Thus criminal prosecution, in view of the exigencies of disposing of so many cases in courts not organized for that purpose is a feeble deterrent. The most available methods of enforcement have come to be injunction proceedings and seizure and destruction of equipment and materials.
Lawyers everywhere deplore, as one of the most serious effects of prohibition, the change in the general attitude toward the federal courts. Formerly these tribunals were of exceptional dignity, and the efficiency and dispatch of their criminal business commanded wholesome fear and respect. The professional criminal, who sometimes had scanty respect for the state tribunals, was careful so to conduct himself as not to come within the jurisdiction of the federal courts. The effect of the huge volume of liquor prosecutions, which has come to these courts under prohibition, has inured their dignity, impaired their efficiency, and endangered the wholesome respect for them which once obtained. Instead of being impressive tribunals of superior jurisdiction, they have had to do the work of police courts and that work has been chiefly in the public eye. These deplorable conditions have been aggravated by the constant presence in about these courts of professional criminal lawyers and bail-bond agents, whose unethical and mercenary practices have detracted from these valued institutions.
Prosecutors, federal and state, have been affected no less than courts. They have been appointed and elected too often under pressure of organizations concerned only with prohibition, as if nothing else were to be considered in the conduct of criminal justice. Their work has been appraised solely in terms of their zeal in liquor cases. Under the pressure to make a record in such cases, it has not always been easy to keep up the right standards of forensic conduct and methods, and speeches such as had not been known in common law courts since the 17th century have become not uncommon in our criminal courts in the last decade. High-handed methods, unreasonable searches and seizures, lawless interference with personal and property rights, have had a bad effect on the work of prosecution at a time when the general condition of American administration of justice was imperatively demanding improvement.
Injurious effects upon the administrative machinery of the courts have been equally apparent. Instances of difficulty in procuring execution warrants by United States marshals, scandals in the carrying out of orders for the destruction of seized liquors, failure to serve orders in padlock injunction cases, and carrying on of illicit production and distribution under protection of a marshal or his assistants, in many places have brought the executive arm of the federal courts into disrespect, where until recently its efficiency was universally believed in. The procuring of permits, the giving of legal advice to beer rings and organizations of bootleggers and the acting as go-betweens between law-breakers and political organizations with a view to protection on one side and campaign contributions on the other, have made conspicuous a type of politician lawyer who had been absent from the federal courts in the past.
Nor have these bad effects been confined to the criminal side of the federal courts. There has been a general bad effect upon the whole administration of justice. There has been a tendency to appraise judges solely by their zeal in liquor prosecutions. In consequence the civil business of the court's has often been delayed or interfered with. Zealous organizations, dictating appointments, interfering with policies and seeking to direct the course of administering the law cooperating with other unfortunate conditions when the law took effect, brought about crude methods of enforcement. The gross inequalities of sentence made possible by the Increased Penalties Act, 1929, has added to the difficulties of the administration of criminal justice.
A policy, announced at one time, of dealing in the federal courts only with large-scale violations, with organized smuggling, diversion, and wholesale manufacture and transportation-leaving police cases to the state courts-was not generally successful for several reasons. Some states have no laws, and, in view of the clear implication of Section 2 of the Eighteenth Amendment, the federal government could not be expected to acquiesce in a general system of open violations in such states. Some states or localities, after the National Prohibition Act, began to leave all enforcement, or at least the brunt thereof, to the federal courts. In these states, too, the policy of Section 2 of the Amendment called for federal action. Moreover petty prosecutions often have an important place in a program of reaching larger violators. Before repeated offenders may be brought within the provisions of the statute as to second and subsequent offenses, it is necessary to prosecute them for a first time even if only for a relatively slight violation. Such prosecutions of small offenders may also be the means of inducing employees to confess and thus aid in detecting those who are behind them. Nor may we overlook the desire of federal agents and officials to make a record for liquor prosecutions and the difficulty of catching and convicting large-scale as compared with small-scale violators.
The operation of the National Prohibition Act has also thrown a greatly increased burden upon the federal penal institutions which seems bound to increase with any effective increase in enforcement. The reports of the Department of Justice show that the total federal long term prison population, i. e., prisoners serving sentences of more than a year, has risen from not more than 5,268 on June 30, 1921 to 14,115 on June 30, 1930. The number of long term prisoners confined in the five leading federal institutions on June 30, 1930 for violation of the National Prohibition Act and other national liquor laws was 4,296 out of a total of 12,332. The percentage of long term violators of the National Prohibition Act and other national liquor laws to total federal prisoners confined in the five leading federal institutions on June 30, 1930 was therefore something over one-third. This constituted by far the largest class of long term federal prisoners so confined, the next largest classes being made up of those sentenced for violation of the Dyer Act (the National Motor Vehicle Theft Act) and the Narcotic Acts, the percentage of whom on June 30, 1930 were, respectively, 13.2% and 22% of the total.
The figures above set out include only persons serving sentences of more than one year, and do not include the very large number of individuals confined in county jails and other institutions for violation of the National Prohibition Act under shorter sentences.
The recital of these figures is sufficient to indicate the gravity and difficulty of the problem from the, penal housing standpoint, which the effective enforcement of the National Prohibition Act presents.
THE INVITATION TO HYPOCRISY AND EVASION INVOLVED IN THE PROVISION AS TO FRUIT JUICES
Reference has been made to the anomalous provision of Section 29, Title 2, of the National Prohibition Act as to the manufacture of nonintoxicating cider and fruit juices exclusively for use in the home. If these are not "liquor" within the act, it 'is hard to see why the provision was needed. If they are, and the provision so suggests by saying that the penalties for the manufacture of "liquor" shall not apply to them, there is a discrimination between beer of lower alcoholic content, which certainly is not a "fruit juice," and wine of distinctly higher content. Moreover, the failure to fix the meaning of "non-intoxicating" in this connection, leaving it a question of fact to be passed on by the jury in each case, in effect removes wine-making from the field of practicable enforcement. Why home wine-making should be lawful while home-brewing of beer and home distilling of spirits are not, why home wine-making for home use is less reprehensible than making the same wine outside the home for home use, and why it should be penal to make wine commercially for use in homes and not penal to make in huge quantities the material for wine-making and set up an elaborate selling campaign for disposing of them is not apparent. if, as has been decided, the provision means to sanction home making of wine of greater alcoholic content than permitted by Section 1, it is so arbitrary, so inviting of evasion, and so contrary to the policy announced in Section 3 that it can only be a source of mischief.
It is generally admitted and indeed has been demonstrated by experience that state cooperation is necessary to effective enforcement. In states which decline to cooperate and in those which give but a perfunctory or lukewarm cooperation, not only does local federal enforcement fail, but those localities become serious points for infecting others. As things are at present, there is virtual local option. It seems to be admitted by the Government and demonstrated by experience that it is substantially impracticable for the federal government alone to enforce the declared policy of the National Prohibition Act effectively as to home production. Obviously, nullification by failure of state cooperation and acquiesced-in nullification in homes have serious implications. Enforcement of a national law with a clearly announced national policy, such as is set forth in Section 3 of the National Prohibition Act, cannot be pronounced satisfactory when gaps of such extent and far-reaching effect are left open.
HOW FAR ARE THESE BAD FEATURES NECESSARILY INVOLVED IN NATIONAL PROHIBITION?
As to the prevailing corruption, it has its foundation in the profit involved in violations of the National Prohibition Act. Hence it could be put an end to, or at least greatly reduced, by eliminating or reducing that profit. Also it could be materially reduced by better selection of personnel, both in the federal enforcing organization and in state police, administrative and prosecuting organizations. But it may be queried whether the profit in violation of the National Prohibition Act is likely to be eliminated or largely reduced so long as so many people and the people in so many localities are willing to pay considerable sums to obtain liquor, and so long as the money available for corruption is so wholly out of proportion to what is practicable in the way of salaries for those concerned with enforcement.
As to the state of public opinion, the way toward improvement is chiefly through education. Unhappily, since the National Prohibition Act the whole emphasis has been upon coercion rather than upon education. In addition many, at least, of the causes of resentment at national prohibition could be removed and thus a more favorable public attitude could be induced. On the other hand, it may be urged that it is too late to educate public opinion in those communities where a settled current adverse to national prohibition has set in. Also, care must be taken lest some of the changes in the law, necessary to remove what have become sources of irritation, may involve relaxation of enforcement so as to react unfavorably upon other features of the situation. The main difficulty will be to reconcile the population in our large urban centers to the policy announced in section three of the National Prohibition Act. How far this is possible is a matter of judgment on which opinions differ.
So also as to the profit involved in violations. How far as a practical matter this may be eliminated by more ample provision of machinery for enforcement and stimulating more complete cooperation in the enforcement of the law as it stands depends upon a judgment as to what may be achieved in places where there is hostile or lukewarm public opinion. At bottom, this question is linked to the preceding one.
The strain on federal courts and federal prosecuting machinery, grows out of the inadequacy of the organization of federal courts and of the federal prosecuting system to the task imposed upon it. To a degree, this inadequacy could be remedied. But it may be a question how far it is expedient to set up what would be in effect a system of federal police magistrates in order to enforce the National Prohibition Act in jurisdictions where the police will not deal with lesser violations to which the present federal judicial organization not adapted. If such violations are not prosecuted somewhere, either in state or in federal tribunals, there is to that extent nullification. While this bad feature of the present situation is not inherent in prohibition, it is closely connected with the question of cooperation between state and federal governments and of concurrent jurisdiction as contemplated by the Eighteenth Amendment, and what is done by way of remedy must depend upon the conclusions reached with respect to possibilities of cooperation.
Finally, with respect to the provision in Section 29 of Title 2 of the National Prohibition Act relation to home production of the bad or potentially bad, features of the present situation could be and ought to be eliminated by the simple process of making the provision in this respect uniform with those of the rest of the act. Removal of the anomalous provision in Section 29 would do away with what threatens to be a serious impairment of the legislatively announced policy of national prohibition.
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