Senate Hearings on the National Prohibition Law - 1926 - Testimony of Hon. Emory R. Buckner--- Resumed

If every bottle of whisky that reaches the consumer were to cost the color of human blood, it would still reach the customer.

Senator MEANS. Let the record show that we have given on Monday two hours and three-quarters. On Tuesday two hours. On Wednesday morning two hours. Wednesday night two hours and three-quarters. Making nine hours and one-half.

(Thereupon, at 10.20 o'clock p. m., Wednesday, April 7, 1926, an adjournment was taken until 10 o'clock a. m., of the next day, Thursday, April 8, 1926.)

UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,
Washington, D. C.

The subcommittee met at 10.05 o'clock a. m., in room 224, Senate Office Building, pursuant to adjournment on yesterday, Senator Rice W. Means (chairman of the subcommittee) presiding.

Present also: Senators Edge and Edwards, of New Jersey, and Representative Hill of Maryland.

Senator MEANS (chairman of the subcommittee). The committee will please come to order. Do you want to put something in the record, Mr. Codman?

Senator WALSH. Mr. Codman, just excuse me. Mr. Chairman, before we proceed this morning I desire to say that some correspondence coming to my desk indicates that some of the press reports of the first days' proceedings apparently carried the impression, some way or other, that there was some discourtesy exhibited by me toward Senator Bruce, the statement being made that I left during the course of the reading of his remarks to the committee.

I thought I made it perfectly plain at the time that I was called to attend a meeting of another committee, which it was absolutely necessary for me to be present at, and I excused myself to Senator Bruce before leaving, so I think it exceedingly strange that any of the gentlemen representing the press who are here would have framed their reports of the proceeding in such a way as to leave the impression upon anyone that I exhibited the slightest discourtesy to Senator Bruce. The chairman of the committee was obliged to leave the session yesterday while Mr. Buckner was upon the stand, and nobody felt that there was any discourtesy exhibited to the witness on that occasion. I hold Senator Bruce in very high esteem, and felt impelled to say to him that I was obliged to go.

Mr. CODMAN. I have here a very careful report in regard to conditions in the great city of Chicago, which has been brought down by a committee representing the mayor of Chicago, headed by Mr. Brennan. I do not wish to interrupt in any way the arrangements which have been made by the committee for the immediate resumption of Mr. Buckner's testimony. That was understood between the chairman and myself as definitely fixed for the time when this committee was opened.

I arranged with Mr. Cermak, who is the president of the county institutions of Chicago, to leave with me all the necessary data which has been supplied by these gentlemen, which I consider of

the highest importance, of very great value in the demonstration of the case which we are presenting before this committee. I do not wish to belittle the value of this evidence at all, because I consider it absolutely essential and of the highest importance, and therefore I wish to be permitted to merely present this evidence at the moment for the record, and then put it in later when it is germane to the condition of the case at that time.

Mr. CODMAN. Now, Mr. Berger, who is the attorney for the board of commissioners, is sitting here and will verify those facts, and then I will put in the papers and refer to them later.

Mr. HENRY A. BERGER. Well, the figures are verified in writing by Mr. Cermak, president of the board of commissioners of Cook County, and also by the statistician of the joint, committee of the city of Chicago and the county of Cook, which is headed by George E. Brennan. There are graphs and charts accompanying the figures. The figures deal with the institutions, penal, insane, and charitable.

Senator MEANS. All right; you may identify them and they will go into the record then.

Mr. CODMAN. Very well. I have all the charts supplied personally to me, and I will put them in the record. Senator Means, I do not want to delay things any further, and as these things are somewhat bulky, may I arrange with the court reporter and yourself to put them in properly identified later?

TESTIMONY OF HON. EMORY R. BUCKNER, UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF NEW YORK––– Resumed

Senator MEANS. I am frank to admit I was astounded, Mr. Buckner, by these figures with regard to 60,000,000 gallons of alcohol that escaped. Now, I have reread the testimony, and it is of such importance, at least to me, that I want to ask you again how you arrived at that and where you got those figures.

Senator MEANS. What is the total amount that was withdrawn or was available for all uses, withdrawn by Government permit?

Mr. BUCKNER. The figures are arrived at in this way: The governmental statistics ending June 30, 1920, show that the amount of industrial alcohol used in the country was 21,000,000 gallons.

Mr. BUCKNER. The Government figures ending June 30, 1925, show that the total amount of industrial alcohol permitted to be withdrawn was 88,000,000 gallons. There is a discrepancy of 67,000,000. A careful study by one of my assistants of the apparent legitimate increase in the arts and industry, automobiles, for a number

of years back before the war and including a study of the peak of the war period, where much more was needed, and then a recession of that peak leads to the conclusion that a million a year increase would be fairly representative of an assumed growth of legitimate demand for alcohol. If we, therefore, take a million a year as the basis and add to it 21,000,000, we get 26,000,000; 26,000,000 from 88,000,000 is 62,000,000. For fear that my young man is too conservative, I throw in the 2,000,000 in order to have round figures, and find 60,000,000.

Senator MEANS. Now let me suggest this. The records show that there are 34,000,000 gallons used alone in the so-called antifreeze solutions in automobiles.

Mr. BUCKNER. Well, you mean the records show that 34,000,000 gallons are withdrawn alone for antifreeze solutions?

Senator MEANS. The records show that 34,000,000 gallons are withdrawn for this purpose. Not that it is all used.

Mr. BUCKNER. No; that is just where the nigger in the woodpile is, because the plant that we have got in Jersey with a capacity of 4,000 gallons a day was dealing in the completely denatured alcohol which, among other things, is withdrawn for automobile purposes.

Senator MEANS. That is just the point that I was going to reach. Now take that item which seems to be the largest––– 34,000,000 gallons. What you are saying to the committee is that that is beyond all reason, and that amount can not, from your investigations be used legitimately for the purposes indicated, to wit, antifreeze?

Mr. BUCKNER. Well, so far as the antifreezing alone is concerned, you would have to study the automobile trade. It would take a scientific survey of the automobile industry. But you see we had lots of automobiles in 1920 and in 1921, and the steady increase of this million a year which is taken includes the growth of automobiles, and I have thrown in 2,000,000 more. Nothing can be derived from the fact that the records show it was withdrawn for that purpose.

Senator MEANS. No. If you have prepared, or if your deputy has prepared, a written brief or survey of that condition I would like to have it, Mr. Buckner, for my own enlightenment. I run too much into conjecture, and to my mind it is not a proper deduction, and if you are correct it is so important that I ought to know. I would like to have the amount as near as you can come to it.

Senator MEANS. I wish you would. I am quite interested, and I would like to know.

Mr. BUCKNER. I will send the committee a memorandum prepared by my office and myself, before you adjourn, supporting this situation. But before I leave the subject I have some new corroboration to offer.

Mr. BUCKNER. You are aware of my answer to Senator Walsh yesterday, are you not?

Mr. BUCKNER. That before we jump too quickly on this proposition that all this is the arts, this is the arts and the industries, that in the single year of 1924 to 1925 the thing jumped 20,000,000.

Senator MEANS. I have that here. I just read your testimony through on that score.

Mr. BUCKNER. But I have even stronger corroboration from General Andrews in a memorandum submitted in support of his request for a supplemental appropriation, and which may have been filed with this committee when he testified. It was furnished me by him.

Senator HARRELD. Is not this figure of 60,000,000 gallons that you estimate to have been sold illegally in 1925 based on your assumption that every gallon of alcohol is diluted to the extent of at least double or may be treble?

Mr. BUCKNER. Yes; surely. Those are the Government records. I do not assume that a bonded distillery sells diluted alcohol. The 88,000,000 gallons, Senator, is pure alcohol.

Senator HARRELD. How do you get the 88,000,000 gallons, because that is not according to the figures that I have on the subject.

Senator HARRELD. Do you mean to say that the Government figures show that there were 88,000,000 sold?

Mr. BUCKNER. Yes: Now just the page, the paragraph and the volume I will submit in a memorandum.

Senator MEANS. Let me say that I know it is 80 some odd million, but I can not remember the exact numeral. It is 80 some odd million gallons that are withdrawn. Those are the figures that I have.

Now gentlemen, here is where I want to put in some now corroboration. General Andrews on March 15, three weeks ago, submitted a memorandum supporting his request for an additional but appropriation for prohibition enforcement I am not at all sure, but I am told that this memorandum was offered in evidence here, but I am not so certain about it.

Mr. BUCKNER. General Andrews in this memorandum asking for additional appropriation within the last two or three weeks goes into some detail as to his alcohol squad, which I told you yesterday he began on September 1 so very efficiently with in New York, with a drive in which, with 21 men in New York he shook down with one shake of the tree 300,000 gallons a month pure alcohol before dilution, or 3,600,000 gallons a year.

Now lot us see what he says he did in Philadelphia, where they have a State law, and of course you would not get as much.

A million gallons a month of alcohol diverted illegally in Philadelphia, taken through in this drive of last autumn, is 12,000,000 a year. That is 12,000,000 a year in Philadelphia, and that is one drive with a small squad, said to be inadequate and sought to be recruited with additional money and additional men, at once stops the diversion of 12,000,000 gallons a year, and the same operation in New York, at the same time, stopped the diversion of 3,600,000.

Senator REED of Missouri. Three million six hundred thousand a year, or a month?

Mr. BUCKNER. Gallons a year. So that you have with this mere vest-pocket squad, in size, in Philadelphia and New York, under General Andrews's drive in September October, and November, reducing without any effort whatever, except by inspection, the diversion of alcohol, 15,600,000 gallons a year, which you see–––

Mr. BUCKNER. In two towns––– which is slightly more than one-quarter of my estimate here, which has been attacked outside and will be attacked by your witnesses.

And I want to call your attention to the fact that General Andrews in professing, and quite properly, his alcohol squad to be inadequate and asking or more men and more money very properly says that even with an inadequate squad and an inefficient squad, which be wants to have increased, shook out 12,000,000 gallons a year of illegally diverted alcohol in Philadelphia alone, where they have a State law, as against 3,600,000 in New York where they have no State law, which is, to repeat, 15,600,000 in two cities alone on just a quick preliminary drive without an adequate squad or adequate salaries.

Senator WALSH. Mr. Buckner, I do not know just what significance you attach to the State law.

Mr. BUCKNER. The significance I attach to the State law is this, that with the State law, of course, you would expect to get very much greater cooperation from the State.

Mr. BUCKNER. No; I mean that there is a State law in Pennsylvania, which I have been urging in New York–––

Mr. BUCKNER. Yes. I think it might be useful to the committee to have me call attention––– although it is a little out of my bailiwick––– to the fact that in Philadelphia where there is a State law, General Andrews's high drive on alcohol cut out 12,000,000 a year, although in New York where there is no State enforcement act at the same time he cut out only 3,600,000.

It may be, of course, that he has not fully gotten around to it. I do not pretend that we divert less than Philadelphia; I just do not know the facts.

Senator MEANS. In fact, there is no way of getting the figures? We have to estimate it?

Mr. BUCKNER. Yes. You see, you do not want to be quickly rushed off your feet by talk about automobiles and freezing mixtures when here it is demonstrated as a matter of figures that in two cities alone with a small force a high drive by General Andrews merely accounted for 15,600,000. What could be done with an organized force, properly paid, of high-class inspectors in a campaign worked out with ingenuity and sustained with vigor over a period of years? I should be very much surprised if the 60,000,000 is not accurate. It may be it is 58; all right, I will take 58. Maybe it is 50; all right, I will take 50.

Senator REED of Missouri. Before we leave that: That is a diversion of the absolutely denatured material that we have been talking about, isn't it?

Mr. BUCKNER. General Andrews says that that is the stopping of
diverted industrial alcohol from distilleries or denaturing plants.

Senator WALSH. I understand it includes both; that is the diversion of the alcohol before it is denatured and the diversion of it or the redistillation of it after it is denatured.

Senator REED of Missouri. That may be, but I want to ask this question: This diversion that was stopped was stopped at the denaturing plants, was it?

Mr., BUCKNER. Probably, because that is the way it was done in New York. Probably the mere presence of inspectors at denaturing plants or possibly distilleries that have denaturing plants on the side––– although I believe that in fairness to the distilleries I should say it is a denaturing plant proposition––– it is probably true that the same technique was applied in Philadelphia, because Mr. Foster ran both parties. It is probable that the same technique was applied, and there is no way to tell Senator Reed, how much of it––– without a very elaborate investigation, which is probably an impossibility––– left the distillery before being poisoned and how much of it after being poisoned.

Senator REED of Missouri. Yes; but that is not the point I am coming to. It may be you have covered it, and if so you will tell me.

I understand that this 60,000,000 gallons which you have been talking about embraces material that was denatured or that was shipped out before it was denatured, but it does not embrace––– or does it embrace such a transaction as this: A lot of this material is denatured, but not fully denatured. It is used for perfumes, and used for lotions, and in various ways, so that there is no deadly poison placed in it. Now, does Your 60,000,000 gallons embrace the rectification of these various products after they have been, in good faith, made, alter the alcohol has been employed in the various products, and then the product itself taken and the foreign substances removed?

Mr. BUCKNER. No; it does not embrace that, so far as we know. As a matter of fact, I do not think it includes a redistillation of actual hair tonic and actual perfume. Is that what you mean?

Mr. BUCKNER. I do not think so. Of course, the way we have approached it, we figured out what would seem to be legitimate uses, going back before the war and right through with the legitimate increase in the industries and then striking a balance. So the way we have approached it would include it, but the reason I doubt very much that it is included, but it is really my own personal opinion: Why should you go to the trouble to make a perfume and redistill it when you can perfectly easily, as is apparent under these figures of General Andrews's and our experience in New York of only four or five months ago, secure it and redistill it before it is made into hair tonic and perfume?

Senator REED of Missouri. The point I am making is this––– and I simply want to get your judgment as to the facts, Mr. Buckner. Suppose that a large quantity of this material is actually made into hair tonic and so sold. Would your 60,000,000 gallons include the alcohol that might be taken out of that hair tonic after it had been sold and put on the market?

Mr. BUCKNER. It would, yes, because, you see, the way we get the 60,000,000 is, striking a balance between what our best judgment indicates would be the normal and legitimate increase, based on past performance, and the whole amount that was distributed.

Senator REED of Missouri. Yes; but you have stopped––– I do not care to argue it; I just want to get it clear. What you have stopped is the turning of this alcohol loose in a denatured form?

Senator REED of Missouri. And you bad this astonishing result at once. Now, prior to the reorganization of the force was there not a lot of substances that had denatured alcohol in them that had been employed for drinking purposes, the denatured product having been removed long prior to this drive?

Senator REED of Missouri. For instance, take ether. I have been informed––– I do not know that it is true––– that sweet spirits of niter is largely alcohol and ether, and that vast amounts of it have been used, denatured in the homes by merely boiling or heating the niter and driving off the ether, and that in that form it has been used to make cocktails, etc.

Senator REED of Missouri. Well, it is a home renaturing, if you please. And now, if that was going Oil prior to the time that you made your first basic figures for comparison, there is nothing that you know of to indicate that it is not going on yet, is there?

Senator HARRELD. Mr. Buckner, Senator Means suggested awhile ago that perhaps 37,000,000 of this 60,000,000 gallons that you mentioned had been used for antifreeze in automobiles. How much did you estimate in your figures was used in that way?

Mr. BUCKNER. I have not the supporting data, but I will put it in my brief when I submit it to you.

Senator HARRELD. But is not this true? Is it not reasonable, to suppose that we have 120,000,000 people in the United States?

Senator HARRELD. And statistics show that 1 out of 7 owns an automobile. That would mean that there are 17,000,000 automobiles in the United States. And now, is it unreasonable to suppose that those 17,000,000 would use 37,000,000 gallons?

Mr. BUCKNER. I do not want to get into the industry. I fall back again on the proposition that when 21 men stop 15,600,000 gallons a year from going out of denaturing plants in two cities–––

Senator HARRELD. No; I want to show that your figures are too large, if I can. I want to know the facts, that is all.

Mr. BUCKNER. I do not know. That would require a survey of the automobile problem.

Mr. BUCKNER. Of course, Senator Harreld, so far as I am concerned and the point I wish to make, it would not make the slightest difference to me if you just took the one year of 1924 and estimated that there had never been a drop of alcohol diverted before that, and get $1,300,000,000 instead of $2,600,000,000.

Senator MEANS. Yes; but the more you show was used in automobiles or for real industrial purposes the more it brings down the amount that is consumed as a beverage, does it not?

Mr. BUCKNER. But you take the amount of the diversion which was stopped in two cities, of 15,000,000 gallons, and it supports my plea for organization and equipment just as effectively as if it were 60,000,000.

Senator MEANS. And I am in favor of your plea for an effective force against that sort of thing.

Mr. BUCKNER. If that business is a billion and a half instead of three billion and a half, what difference? A billion is enough.

Senator MEANS. One of the things we are trying to arrive at here is, though, how much of this illegitimately used alcohol goes for beverages. That is one of the things we are trying to discover, and in order to do that we want the facts about how much of it is really used in industrial pursuits.

Mr. BUCKNER. Now I pass to the question of the machinery required in my district for proper enforcement of the prohibition law. Everything I say about prohibition enforcement connotes no extreme or unconventional enforcement as compared with other laws, even with equal enforcement of other laws as against the enforcement that I am talking about. As a preliminary to that I must deal with one subject on which I feel very strongly indeed, and that is the subject of fines.

I think that calling a plea of guilty in a prohibition case a conviction, with a capital "C" in the records of the Prohibition Unit and the records of the Department of Justice and in the speeches and discussion of this subject throughout the country, is very misleading. In my judgment, in my district, as a prosecutor I say that a plea of

guilty in a liquor case and a fine are not a conviction in any real and essential sense from the standpoint of a prosecutor.

I have had almost 3,000 pleas of guilty in the last 12 months. I have collected $265,000 in fines in prohibition cases. That probably would run my entire office. I do not point to it with pride; I am ashamed of it. I am very much prouder of the 150 or 160 men that in the same length of time we have succeeded in putting in jail for a combined period of twenty-six odd years in those few months.

But look at the proportion between the 150 or 160 men who have gone to jail, and, in round numbers, the 3,000 men who have pleaded guilty and paid fines. As a prosecutor I have it coming up all the time, and as a prosecutor, wanting to be an efficient prosecutor, I do not want any of the dirty money of a bootlegger. If the law is to be enforced and if it is to act as a deterrent, the prosecutor should want the man's liberty for violating the law and not a small piece of the profits. And I think, gentlemen, if I may be permitted to say so, from an experience of five years as a prosecutor when I first began being a lawyer and in the 13 months recently, that one of the unfortunate features in prohibition enforcement is that when the people read about so many thousand convictions––– 3,000 convictions secured by Buckner last year––– it looks as if that connoted efficient law enforcement. In my judgment, that proposition should be changed and the records of the Prohibition Unit and the records of the Department of Justice read, "Escaped on payment of money." Because, don't you see, almost any violator is willing to compound with the prosecutor and law a small part of his earnings. This business of the enforcement of law playing its way is, in my judgment, a very bad feature to inject into law enforcement of any kind. I will undertake now to take over the prosecution of pickpockets in New York City and make that law pay its way. Here in Washington I had under indictment an employee of the Department of Internal Revenue for conspiracy to defraud the Government because he had made an arrangement to take some $14,000 if he wiped off a tax of $140,000. His attorney came to me and wanted to know what we thought about a fine; that his client was not guilty anyhow and would acquitted. I said, "'If your client is innocent he ought to be acquitted, and for me to accept a fine in the face of your statement that he is innocent is blackmail. If your client is guilty, then for me to accept a fine, for an important official of the Government to betray his trust, is simply compounding a crime." So we went to trial and he was convicted, or pleaded guilty after four months, and received a jail sentence.

I read constantly the arguments that prohibition enforcement is paying its way because you collect so many fines, and I think, if I may submit my own views, that that is a great mistake. I think that Mr. Mellon should collect the revenues of the country and that the Department of Justice should put lawbreakers in jail.

Senator REED of Missouri. Do you want to send everybody to jail that breaks every law?

Mr. BUCKNER. No; not necessarily. I am talking as a general proposition. There are many cases where a man would be fined in the first instance and placed on parole if you had the proper machinery for seeing if he committed a second offense. As a general proposition,

assuming, that a plea of guilty and a payment of a fine constitutes progress for the law enforcement––– of course, they do not Senator Reed––– take the traffic law. If I were a traffic judge I would not send every violator to jail; it would all depend upon the circumstances. But I am talking now of the general proposition, that when you read in the record that there are so many convictions you are to understand, and you ought to inquire, how many of those are convictions from necessity. The pleas of guilty that have been made in my district are from sheer necessity. For instance, I have been criticized for clearing up two or three thousand cases on a so-called bargain sale. Let me tell you about that.

I did exactly what had always been done in my district, and the only thing that possibly could be done. One year before that so-called bargain counter proposition of clearing my calendars the summer before, in the same way, with the same judge and about the same number of defendants the calendars were cleared. It was the only way it could be cleared. That had always been the system, and it can only be the system.

Mr. BUCKNER. By letting the men plead guilty with the understanding that if they pleaded guilty the court would impose a fine. Otherwise, with the docket of 3,000 cases with which I started, the figures which I gave you the other day, I would be some six years trying those cases; even if the prohibition law had been repealed five minutes after I came into office. The reason why I dramatized it and called attention to it, although it was exactly the same institution that had always existed and always must exist if these petty violators are arrested, was simply to point out that that is not law enforcement.

Senator REED of Missouri. Mr. Buckner, you recognize the fact that there are many offenses besides parking an automobile at the wrong place where a fine is adequate punishment, do you not?

Mr. BUCKNER. Oh, certainly, and a fine is frequently an adequate punishment in prohibition cases if it follows the arrest. I believe there are hundreds of thousands of white-collared violators of the law in New York City who would stop violating the law overnight if there was a reasonable chance that they would be arrested and have to give bail, and would then have to put up a fine of $50, even with no chance of ever having to go to jail.

If the court machinery were provided, and the agents were provided I say there are thousands upon thousands of people who would cut out violating the law, and say it was not worth it, because they would not want their children and their neighbors to read in the newspapers that they, had been arrested for violating the liquor law and taken down to court.

Senator REED of Missouri. You as a prosecutor recognize that as to all laws there are many offenses which in their nature are so slight that sending a citizen to jail would be a worse moral crime than the act of the citizen in committing it.

Mr. BUCKNER. Well, of course that is always true, because there are all kinds of crimes. We do not want to go back to the days of where they had at one time scores of crimes that were punishable by capital punishment. It is all a question of degree.

Senator REED of Missouri. Exactly, and in all cases the penalty inflicted ought to be in, proportion to the offense committed.

Senator REED of Missouri. And you also recognize the fact as a prosecutor, do you not, that if you make penalties too severe that convictions, become correspondingly difficult?

Mr. BUCKNER. Well, you do if you have a mandatory penalty on the part of the court. But, if the court can inflict any penalty he thanks proper I think it is different. I have never had a concrete instance of your proposition except in the early days, where it was compulsory on the court to send a man who stole from the post office to the penitentiary for one year and a day. Seventeen years ago as assistant United States attorney I lost some cases because the jury knew that the judge, in those particular cases––– say, of stealing a fountain pen from the mails, or something of that sort- - that the judge was compelled to send the parties to jail.

Senator REED of Missouri. Then you do not advocate that a mandatory penalty should he put in the law. You want discretion still left with the court.

Senator WALSH. How would you reach the situation that you think should be remedied?

Senator WALSH. No; I am speaking now about the imposition of a jail sentence instead of a fine. If you do not change the law and leave the matter in the discretion of the court, you would leave the situation exactly as it is now, would you not? Does this simply mean that in your estimation the judges ought more frequently to impose jail sentences?

Mr. BUCKNER. We have no trouble with the judges in my district, and I can only speak for them.

Senator WALSH. Then I ask, to what end do you introduce that feature here?

Mr. BUCKNER. The talk about persons going to jail?

Senator WALSH. Yes.

Mr. BUCKNER. Because you can not send people to jail unless you are in position to say: "You have get to go to jail, and if you are not willing to go to jail on a plea of guilty we will try you."

Now, I am in a position where an attorney may smile and say, "Where?" And after it, "And when?" And I say, "Well, I will try your client unless he pleads guilty."

Senator WALSH. Then this means a plea on your part for additional court facilities?

Mr. BUCKNER. For the machinery that is necessary. It is all a question of the necessary courts and agents. They go hand in hand in this matter of enforcement.

Mr. BUCKNER. Well, I want the machinery first to get the men sent to jail who are guilty of these violations.

Senator REED of Missouri. What do you think about putting a stone wall around the country? Do you think you could get enough guards in that case that could not be corrupted, or who would themselves not be guilty, so that you could reasonably patrol those walls?

Mr. BUCKNER. Well, I am only talking about my district. My best information is that we are getting considerable alcohol from Philadelphia now, and that a wall around my district might help.

Mr. CODMAN. Mr. Buckner, you have made a calculation of the expense necessary, and the machinery necessary, in order to get the enforcement that you believe you need in your district, have you not?

Mr. CODMAN. I wanted to let the Senators know that you have made those calculations, because I think that is a matter of very great importance.

Mr. BUCKNER. I am going into that right now. Take this padlock substitute for petty arrests in the city of New York, which we have been using for some time and which has become quite effective. But after all I do not regard that as more than a dent, because you can see how we are hampered. After we padlock a place have we anybody we can send to that place two weeks afterwards to see whether or not that place is still padlocked, and see whether or not the owner of that place, who has been put under an injunction, a powerful weapon, and who could be arrested for contempt of court, as violated it?

Senator HARRELD. Right there I should like to ask a question: What is the average length of time for which you padlock a place?

Mr. BUCKNER. My standing rule is six months if they do not fight
and a year if they do fight.

Senator HARRELD. Have you any statistics to show how long they are really closed after you get the injunction?

Mr. BUCKNER. Do you mean whether or not there is any violation of the solemn order of the court by opening their doors?

Senator HARRELD. I want to know if you have any statistics as to how the order of the court is obeyed in the case of these padlock injunctions?

Mr. BUCKNER. No, and it is because we have nobody to see to that. And do you know how many people we have now to handle this matter?

Mr. BUCKNER. No. There are 6,000,000 or 8,000,000 people in the 28 counties, and first we have to get the evidence, and then follow that up. And what we would like to be able to do, in order to make the matter efficient is when we arrest a man the second time to send him to jail without jury trial––– and all we have are 23 men.

Mr. BUCKNER. Largely with the assistance of the New York City police during the last 13 months we have actually locked up 500 places of all kinds. We do not let any place go no matter how little it is when we get evidence of the sale of liquor; we just bring a padlock proceeding against the owner of the place rather than arrest the bum or bartender who may be in that place.

Senator HARRELD. Then I understand that you get an order closing the establishment, but you do not know whether each and every order is obeyed or not.

Mr. BUCKNER. We have no way of knowing except as we rely upon the neighbors for information. At a prominent place there is no difficulty because I would be sure to get letters to the effect that the injunction was not being obeyed––– and as to many small places we get letters. And I wish to assure you that we follow all of them up.

However, for lack of prohibition agents and deputy United States marshals to see that every order is obeyed, and to get the men in court for contempt of court, and to abolish the place by contempt proceedings, we simply have not the men to do it.

Out of 198 men that General Andrews said are over there, there are so many different things for them to do, for what you might call criminal enforcement, for getting stills in tenement houses, for getting substantial transportation cases on the streets, for legal enforcement of padlock cases, and so on, we have now only 23 men. And how can we expect 23 men to do all that work?

But I get to a recommendation on that proposition later in my testimony. I will state what I should like to have if I am to enforce the law.

Senator HARRELD. You say that your padlocking efforts are simply making a dent in prohibition violations. If you had sufficient machinery it would be a pretty big dent, would it not?

Mr. BUCKNER. Oh, it would. You appreciate what a powerful weapon the injunction is. When we get a padlock injunction against the place we put the owner, not the busboy, under a personal bond not to violate the law again in our district. If he is caught violating the law again he can be brought down and given a hearing for contempt of court, and it is with all the speed of any hearing before a judge instead of the cumbersome jury method. And if he is found guilty by the court he can be sentenced to jail right then and there for contempt of court.

But, you understand, that weapon, powerful as it is, we are almost denied because of lack of effective machinery.

Senator REED of Missouri. Mr. Buckner, in order to enforce the prohibition law you would have to practically abolish the constitutional right of jury trial, would you not?

Mr. BUCKNER. I do not say it is a constitutional right, and I can not answer your question unless you cut that out.

Senator REED of Missouri. Well, I will say unless you abolish the right of jury trial.

Mr. BUCKNER. And I say that because the doctors of the law disagree on that question, I believe. And here in the District of Columbia I understand that such cases are tried without a jury.

190 * * * * * THE NATIONAL PROHIBITION LAW * * * * *

Senator WALSH. And the statutes here in the District of Columbia have been decided by the Supreme Court of the United States as not violative of the right of jury trial.

Mr. BUCKNER. If a man sells liquor in the District of Columbia he does not get a jury trial, but if he sells a single drink in New York he is entitled to jury trial. In order to enforce the prohibition law I feel that we must have trial in what are practically police courts without a jury. That is the whole point really of my testimony.

Senator REED of Missouri. I think by all means we ought to abolish every Anglo-Saxon right that we have in order to stop somebody from selling beer.

Mr. CODMAN. That seems to be the natural corollary. And will you permit the United States attorney to proceed, as I am watching the time, and there is a good deal he has not touched as yet.

Mr. BUCKNER. I am practically through except as to what I regard as to the necessary court machinery. The first proposition is what Senator Reed has just alluded to. When I was assistant United States attorney 17 years ago, I would occasionally be called upon to prosecute a man for dumping ashes in New York Harbor, not going out far enough, or dumping trash in New York Harbor. And what did I have to do? I had to go to a grand jury and get an indictment. Then we had to have a petit jury trial.

And if you take violations of the pure food laws, if a man adulterated a bottle of vanilla, or put water in a can of tomatoes, we have to proceed, by information in such cases, but we have to give a jury trial. You gentlemen know what that means.

On the other hand, if a woman steals a shirt waist in Macy's she is tried at the court of special sessions without a jury. But if that same woman works for the Post Office Department and steals a shirt waist from the mails. I have to go before a grand jury of 23 men, present the evidence, get an indictment, and then go to court and appear before a petit Jury, with all the time-consuming machinery that a jury trial means.

New York City years and years ago, long before I came to New York, faced that situation of drunks, disorderly conduct, and all such misdemeanors, and worked out for itself abolition of jury trial. And yet I hear no great excitement about it. The special session judges can sentence people to jail, give an indeterminate sentence, which I believe at the present time may go as long as two years. All magistrates for petty offenses, such as drunks, disorderly conduct, vagrancy, and the like, have the power to sentence persons to Blackwells Island for six months.

That system seems to be essential to the orderly conduct of such matters, to the police conduct in a city of the size of New York––– that jury trial for misdemeanors and petty offenses, should be abolished.

Senator REED of Missouri. Do you call a sentence of two years––– and that applies to petty offenses, I believe.

Senator REED of Missouri. Why could not they make it 20 years and have jury trials absolutely wiped out?

Mr. BUCKNER. I am not discussing policies, Senator Reed. I am simply saying that if the United States Government wants its prosecutor in the Southern District of New York to enforce what are really police laws, that prosecutor wants police courts and the police court system in which to prosecute them. And if the United States Government does not want to give that prosecutor police courts it ought not to give its prosecutor police laws to handle. That is simple enough, I take it?

Senator REED of Missouri. Yes, I should say it is from the standpoint of the prosecutor. But how about the poor devil who is brought up there and railroaded?

Mr. BUCKNER. That is out of my province. I am simply using that as an illustration of the situation in New York City surrounding the United States attorney's office.

Senator WALSH. Let me remark that we have been considering for some time, Mr. Buckner, the idea of creating inferior or subordinate judges of the United States district courts, of giving them jurisdiction try these police-court cases, as they may be spoken of. But, of course, that would not relieve the situation as you have indicated it––– the necessity for jury trial and the necessity for grand jury action. But would the situation in your district be relieved if auxiliary judges were appointed with jurisdiction exclusively over these police-court cases?

Senator WALSH. Well, of course, that is constitutional, and we could not change that.

Mr. BUCKNER. Well, I could not discuss that proposition. There are some legal writers who say you can do it without jury trial.

Senator WALSH. Let me remark that the Supreme Court of the United States has so decided with respect to the magistrates of the District of Columbia.

Mr. BUCKNER. Yes, I so understand. If you ask me how about getting this down even to a sentence for six months by a police magistrate, calling it disorderly conduct or by any name you want to call it, I would say that would be a tremendous stride ahead of where we stand now. To-day we try a prohibition violation case as if we were trying a man for treason––– having to seek an indictment first before a grand jury and then after a time going before a petit jury. Of course, these auxiliary judges you speak of, Senator Walsh, are just what we ought to have, by any name you want to call them.

Senator REED of Missouri. Mr. Buckner, let me understand. Do you advocate abolition of jury trial in these cases, or do you simply say you can not enforce the law unless you do have jury trials?

Mr. BUCKNER. I say I can not enforce the law in the police court, And that is what it is in essence, unless you do it. I do not care whether you give us more machinery or less law. We ought to have the court equipment brought up to date, brought up to the law, or the law brought down to the equipment we have. But as a prosecutor I have no opinion about it either way, except to ask that you give us one or the other.

Senator REED of Missouri. Of course you are not only a prosecutor but you are a citizen of the United States, and a somewhat distinguished one in your city.

Senator REED of Missouri. You have held important places, and held them well, I think, and I am curious to know whether you are advocating abolition of trial by jury or whether you are simply saying to us: Unless you do abolish trial by jury I can not enforce this law.

Mr. BUCKNER. Senator Reed, if there were no prohibition law at all, and even if we had only the narcotic law, the pure food law, the navigation law, and the post-office law, I would say that for the existing laws, and before prohibition, you should long ago have followed in the wake of New York City and created inferior courts without jury for the purpose of trying such cases and speeding up their trial.

Mr. BUCKNER. I was for about two years assistant United States attorney, and for two and a half years was assistant district attorney. That is a total of four and a half years, when I started as a lawyer. Then I was out in practice some years, and then I worked on the police investigation for a year, and then I was out in practice 12 years, and then I have been United States attorney 13 months, some six or seven years as prosecutor in all.

Mr. BUCKNER. Now, what is the machinery we should have for enforcement? We have 11 counties in my district, as I told you on yesterday. We have the congested Manhattan County, the congested Bronx County, and the very populous Westchester County, with a good many populous towns or suburbs in it like New Rochelle, Mount Vernon, Yonkers, White Plains. Then we have eight counties running up to Albany, and it seems to me the very minimum requirement as to courts would be to have three courts in Manhattan, three courts in the Bronx, three courts in Westchester, and one court each in the counties running up to Albany, for the enforcement not only of this law but of course of all petty Federal laws, even if it required new legislation.

Mr. BUCKNER. That means 17 additional courts. And do you see how reasonable that is? I do not know the population of that district, but as I have said there must be 6,000,000 or 8,000,000 people extending from the Battery almost to Albany. In those eight up-State counties I would only have one court to a county. And surely one court to an entire county for the enforcement of the prohibition law, or any other laws for which we might have police jurisdiction, is as few as you could possibly have.

Now, gentlemen of the committee, there are proposed 17 courts if, and I want to stress the if, either by legislation, if that is required, or by constitutional amendment, if that is required, you create these police courts and abolish jury trial, so as to have them just the same as the court of special sessions in New York City for the last 30 or 40 years; now, that is if you do that, and if those 3 courts in Manhattan, 3 in Bronx, 3 in Westchester and only 1 each for the other counties; if they are police courts, like traffic courts, with police magistrates or special sessions, or whatever you want to call them,

United States commissioners, if you will, with power to dispose of prohibition violations without jury trial, I regard those 17 courts as the minimum basis if you are going to face real enforcement.

Mr. BUCKNER. If you do not pass a constitutional amendment and do not adopt legislation to do away with jury trial––– and I have a very conservative way of answering Senator Reed's question––– I have gone into the figures of the courts of special sessions of new York City, which try misdemeanors, some of them of long duration, like unfair competition; I have examined those figures, and find the courts of special sessions sitting without a jury dispose of about five times as much business as the courts of general sessions sitting with a jury.

As a matter of fact, I find that the police courts, strictly speaking when it comes to drunks, disorderly conduct, and traffic violations run 10, 20, 30, 40, 50 cases, but to be conservative, I will just rely on these figures of the courts of general sessions, and, therefore, if you are going to keep jury trial what I regard as the absolute minimum complement of courts to handle the situation properly I should have five times 17, or 85 Federal judges in my district alone.

Senator WALSH. Dismissing for the moment prohibition cases, and because you spoke about other violations of Federal statutes, let me ask how many extra judges you would need in your district for them?

Senator WALSH. The prohibition law is gone so far as this question Is concerned, and you do not have to do anything with it.

Mr. BUCKNER. It would be pure instinct on which I would attempt to answer that and, of course, there is the narcotic law and other violations that you would still try in those courts.

Senator WALSH. Yes; and commercial frauds, and post office cases, and all that kind of thing.

Mr. BUCKNER. And you are talking about only the United States attorney's work, or business in the southern district of New York?

Mr. BUCKNER. I have consistently maintained down there that three judges, for which a bill has been introduced, are wholly inadequate in my judgment if the prohibition law were repealed tomorrow, knowing the problems confronting the courts there, and knowing the calendars, and knowing how hard those judges work, there ought to be about six additional United States District judges.

Senator REED of Missouri. That is 6 as against 85, for you say you will need 85 for this work if you keep the jury trial.

Senator REED of Missouri. And you need 6 additional judges anyway, but if you repeal the prohibition law you would only need 6 and keep the jury trial.

Mr. BUCKNER. Six additional judges may be a little bit too many. It is pure instinct on my part that I am using in an attempt to answer the question. It may be that 4 judges or 5 judges or 6 judges in addition to what we have will be needed. I have in mind the bar and private litigants and getting the calendars up to date; and I have in mind an efficient United States attorney's office, where you have a sufficient and efficient number of attorneys on your staff, and where you take hold of important work that does not come in automatically, like this drug store business I have been telling you about, I would say that perhaps if the prohibition law were repealed you might try it out by putting in, say, five judges, and see how it works. But ever since I have been in office, I should say we have had every day two or three out-of-town judges all the time, and without them we would have been absolutely whipped in New York.

Senator WALSH. I do not understand quite where the 85 judges you speak of come in. Will you explain that?

Mr. BUCKNER. Now, I have the prohibition law, which is the principal thing, of course. I have jury trial abolished. We are going to try to enforce the law about as well as we enforce other laws, would certainly want three police courts in Manhattan, like traffic courts, and would want three police courts in the Bronx–––-

Senator HARRELD (interposing). Do you mean three additional courts or three in all?

Mr. BUCKNER. Oh, I mean three additional courts, police courts. And I would want three such courts in Westchester County, and I would want one such court in every other county in my district. That would make 17 courts. But, if you do not abolish trial by jury then I would have to have a lot more courts, and I go to the court of special sessions to get a standard. We have the courts of special sessions in New York City trying misdemeanors, but are trying misdemeanors without a jury, and their ratio as compared to the court of general sessions, with a jury, is five to one.

I, therefore, say if you are going to keep the jury system then we ought to have not only the 17 courts I have mentioned far prohibition cases, but should have 85 courts, with the present Federal Judge or inferior judge sitting in each court, as may think is proper and necessary.

Mr. BUCKNER. Now, in making up my statement I have tried to give absolutely the minimum for those courts. For instance, I have provided at each court a chief clerk and two deputy clerks. That is, only three clerks to a court. I have provided two court attendants to a court. I have proposed to equip this Federal court on a lower basis than the police magistrate's court in New York City on the whole. I would want in each one of these courts, scattered over the 17 counties, two district attorneys. It is very

important to have your district attorney on the ground to watch the situation, to see the business as it comes in, because an intelligent man can see possibilities like this drug-store situation, which we developed wholly by finding prescriptions in a man's pocket, and it would not be unreasonable to have two district attorneys in each court, one working on the daily operations and, the other preparing evidence or attending to other matters. I would have to have a court stenographer in each court. Now, I have to just guess at the number of marshals. We know that we do not have anything like enough deputy marshals. This number of course is estimated. I have this vast territory, and if we get going and got efficient and have the courts and have somewhere to go, we surely should have 100 more deputy marshals at a conservative estimate.

Now, I come to the matter of agents. While at this moment the number of prohibition agents in the southern district of New York represents a mere handful of men, and it is perfectly true that outside of in increasing inspection, etc., it does not do any good to have a large number of agents, unless you have some courts to take them to, that there is no use of arresting people unless you have the courts to which to take them; yet with the court machinery increased the personnel of the prohibition unit must go pari passu. It does not do any good to have a United States attorney's office and have courts if you do not have agents to get evidence, and to work up conspiracy cases, and to perform inspection, etc. And I think I have been very conservative for I have put down for my entire district to recommend that we should have certainly a minimum of 1,500 agents in the southern district of New York.

You gentlemen realize that in Greater New York there are 2,500 traffic cops alone. Now, mind you, that just represents traffic cops. This is a slightly different problem, and much more difficult in some ways, although easier in other ways. And these 1,500 agents would have to handle all this important inspection work. They would have all these denaturing plants. They would have 1,200 drug stores, and 5,100 doctors, and perhaps there are 7 000 people in my district holding some kind of Government paper that permits them either to buy or sell liquor. And, of count, no even conservative minimum enforcement of prohibition can be contemplated until you get the inspection of permit holders up on a high plane, with men paid very good, salaries compared to what they are now paid.

Until General Andrews came in office the salary on which a prohibition agent started in the service was $1,680, and the maximum salary was $2,100. Now I understand, although I cannot be accurate to the penny, that prohibition agents in New York start at one thousand eight hundred odd dollars, with a maximum of still something around $2,100 or $2,200, except in special cases. General Andrews told you that the average was $2,000.

Stop and think, gentlemen of the committee––– $2,000 for a man, wife, and child in New York City, with even a three-room flat or tenement to live in, is not a living wage. And yet there are numbers of applicants for the jobs, and others who have been dropped are conducting campaigns to be restored to their jobs, on which a married man with wile and child to educate simply can not live.

Senator REED of Missouri. That is 6 as against 85, for you say you will need 85 for this work if you keep the jury trial.

Senator REED of Missouri. And you need 6 additional judges anyway, but if you repeal the prohibition law you would only need 6 and keep the jury trial.

Senator WALSH. I do not understand quite where the 85 judges you speak of come in. Will you explain that?

Senator HARRELD (interposing). Do you mean three additional courts or three in all?

Senator REED of Missouri. Why do they want these jobs if they can not live on the salary provided? There must be some reason for their anxiety for the jobs.

Mr. BUCKNER. A man told me that he had a business of his own, and that he could afford it and liked the work. I asked him the same question, and he said he enjoyed the work.

Senator REED of Missouri. Now, just frankly, is it because there are opportunities to make money?

Senator REED of Missouri. Yes; if you had the evidence; but is not that your opinion of the matter?

Mr. BUCKNER. I simply say that the salaries paid by the United States Government to prohibition agents are not a living wage in New York City for a married man, yes; with or without a family.

Mr. BUCKNER. Yes; men clamor for the jobs. And I pointed out on yesterday that last September and October each particular man of the 21 men was responsible for stopping $10,000,000 worth of work.

Senator REED of Missouri. What salary do you think they would have to be paid to put them beyond temptation in the case you have last mentioned?

Mr. BUCKNER. I do not want to answer the question as to what salary you will I have to pay for them to be placed beyond temptation. But my position is that men who work for the Government ought to be paid a salary on which they can live, on which they can live respectably well and, on which they can live along with other people more or less in the same situation, and can educate their children, and on which they can occasionally buy their children a suit of clothes. And I say that $2,000 a year in the city of New York by any kind of survey, which you can easily get from any of the institutions interested in such matters, a man, his wife, and child can not live.

Mr. BUCKNER. Now, I shall not go into any details of facts concerning prohibition agents, because I am very much interested in the subject.

We have only managed to arrest about two since I have been in office, and I will not give an opinion on a subject which is not supported by the facts. If I knew the concrete facts, or if I had been successful in securing the facts in the investigation which I have inaugurated, I would long ago have prosecuted them.

It is so hard to get the facts. said to a man, for instance, "I will not padlock your place if you will tell me who you paid protection to last year, whether city police officers or Government agents." I said, "I would fax rather prosecute a Government employee than padlock your place. Whom did you pay that money to?" And he said, "I would not think of telling it. My life would be at stake if I did tell you."

I said to another man, "You could not have operated this way without protection. A man can not run an establishment your size, with what you are doing, without protection. What did you pay, say, the last time?" He said, "$5,000." I said, "You tell me give me the evidence of your paying $5,000 and I will not padlock your place, and I will not prosecute you criminally, if you tell the truth. I will represent to the court that it is much more in the public interest for you to explain the money that you have paid." He said, "You can put me in jail to the utmost limit of the law before I will ever tell such a story, because I would not live 24 hours. I paid $5,000. I did not pay it to a prohibition agent. I paid it to gangsters who handle my trucking. These gangsters I paid. I don't know whom they paid to, of course, legally. I only know I got protection. These gangsters that take care of my trucking for me are desperate men and if I testified on the stand and gave you their names so you could act them before the grand jury, my life would not be worth 50 cents for 24 hours. Much easier for me to go to jail for six months, or for as long as you impose, on a plea of guilty, and then get out, than to assist you in this investigation and find myself bumped off."

Maybe he is wrong. I am telling you what he said. I am giving you my effort to get at Senator Reed's question, and I am telling you why I was foiled. And he actually went to jail on a plea of guilty, I think, for four months. He actually went to jail, when I had offered him complete freedom if he would simply tell the names of two gangsters, who are not public officials, to whom he paid $5,000 to prevent a raid.

So I say that with all this permit work, all this inspection. work, all the padlock work, all the criminal enforcement work, I have put down here 1,500 agents for my district, which is certainly very conservative, and I put them down at $3,000 a year. I think they ought to have $3,500. We paid more than $3,500 to several employees in the private law office that I used to be connected with, who were not themselves lawyers. I should think $3,500 was a minimum, but I cut down my estimate around $3,000. Perhaps $3,250 would do. This is New York City. There is no use to have a national standard. There is no reason why a prohibition agent in New York should be paid exactly the same as a prohibition agent in Wahoo, Nebr.

Senator HARRELD. Right there, let me ask you a question, Mr. Buckner. How can you put these prohibition officers under civil service and not pay them the same salary all over the country? And yet that is what is proposed to be done.

Mr. BUCKNER. I do not know. I have no opinion on the civil service question. I do not feel that I know enough about civil service to have an opinion on it.

Senator HARRELD. I have not either, but the problems connected with it are what are occurring to me. Now, you are right about it. I think these men ought to be paid more in New York City than they ought to be paid perhaps in Fredericksburg, Va., or some other smaller place. But how are you going to do that and put them under civil service, which is a very live problem here now before us?

Mr. BUCKNER. Well, I regard it so important that people should be paid living wages that if giving up Civil service is the price for paying a man what he could live on, then I would pay him what he

Mr. BUCKNER. Anything is better than paying a man what he can not live on. A man in Wahoo, Nebr., can rent a house for $25 a month, and when the same fellow comes to, New York and takes three rooms or four rooms, he has to pay $900 or $1,000 a year, half his salary.

And then there are the irritations of getting your money back from the Government. Of course very likely the red tape of Government disbursements is in the end the only wise and proper course, though I find it extremely irritating to me as district attorney sometimes. But we had working on a case a prohibition agent from Nebraska getting $2,100 a year, a very fine agent. We got him on a case because a line that he was developing led into New York and we grabbed him and held him there and cajoled him and kept him about six months. This is the mail-order case where we got the conviction that I told you of yesterday. I asked him if he would not come to New York. He is the type of man we would like to have. We would like to have 1,500 of them. He said he could not possibly afford to come to New York. He was married, his children were going to school, he lived at Lincoln, Nebr., his children were small, he could not get a room and a kitchenette for the rent that he was paying out in. Lincoln, Nebr., and he said he could not afford it.

Moreover, he said, "Please don't work me in on any more cases. I get $2,100 a year, and I have worked on this case five months, I wanted to see it through, and it has cost me $300 legitimate expenses which I can not possibly get back "cause it goes against some of the arbitrary limits and rules of the accounting system."

I do not attack those rules, but I say that that should be considered too, legitimate, nonvoucherable, as it were––– we all know what that means. You are limited to $4 a day. Well, you happen to spend $4.75. I heard of a prohibition agent who charged 5 cents for putting a nickel in the telephone to call for the patrol wagon. That charge was, disallowed because it was said, "You should have taken your prisoner to prohibition headquarters, two or three miles away, and you should have used the trunk line.

Mr. CODMAN. Mr. Chairman, I merely want to call the committee's attention to the fact that it is now nearly 25 minutes past 11. There is some very important testimony which the district attorney wants to present to the committee, and if the time is consumed by other questions, even though they are very pertinent, I am afraid we would not have time to finish with Mr. Buckner this morning.

Mr. CODMAN. Well, I want you very much to give the estimated cost of the machinery which you, would require, bow under the systeM of police courts without juries, and it you can not get police courts and have to. have a reorganization under your present system, and jury trials. Both of those figures should be before the committee.

Mr. BUCKNER. In order to make my position somewhat more rational, also, I should like opportunity to file with the committee, along with the other memorandum on alcohol, a. statement in which I will work out this question, this skeleton arrangement of courts,

and the complement of each court, and file it with the committee so that you can see exactly where we get each dollar or two dollars or three dollars that comes in the grand scale, and I will content myself now by saying that, with these 17 courts, if they are police courts, and there is no jury trial, 17 courts would be as much as one would want to experiment with. If you need more than that later, after a year's experiment, you could add more. If you need less, all right, they could do something else.

I find that those courts for my district alone, which is not all of New York, would be $8,000,000. That includes the cost to the Prohibition Unit and the cost to the Department of Justice, because I have welded it, fused it, into one organization, which perhaps it ought to be anyhow.

Mr. BUCKNER. Yes. The, eastern district, which after all, is all one city, and our problems are all the same, and we ought not to have separate districts––– it is just across the river to Brooklyn, and we are always having trouble on removal proceedings and things of that kind––– the eastern district, which is all of Brooklyn––– and I wish to say that the prohibition administrator in New York told me last week that he had nine prohibition agents only in the Borough of Brooklyn, and it has 2,500,000 people––– the eastern district is Brooklyn and all of Long Island, with all of that coast line, and surely the most conservative estimate would be that the problem of the eastern district is at least 50 per cent of mine.

Then in order to get a State estimate, because most of us think in terms of State lines, which makes it confusing to talk about districts, I consider the northern district and the western district of New York, the whole Canadian border, the congested and industrial centers such as Syracuse and Rochester, etc., and I say surely I am bending backward on conservatism if I assume that both those districts added into one is at least 25 per cent of my problem, because whether your section is populous or otherwise there is a certain minimum court schedule that you must always have.

That works out for the entire State, with both the Prohibition Unit and the Department of Justice, an annual cost of $15,000,000.

If, however, you do not abolish jury trials, but you stick to the Federal constitutional right of jury trial as it is to-day, and if you take the estimate that I have figured out from courts of special sessions in New York City––– no better place to go to for information as to the relative length of trials, which are five to one––– then it is obvious that instead of 17 courts in my district I should have 85. That instead of 30 courts for the entire State there should be 150 new Federal judges for the entire State of New York under the present system. And, although there would be various shifts and changes, you would not quite need five times as many prohibition agents––– perhaps two times would do––– there are other things in which you would need more, and it is not far wrong to simply take the arbitrary five to one and say that the annual cost of enforcing prohibition, taking both

Mr. BUCKNER. No; I do not think so. To tell the truth, Senator I think I am too conservative. Of course, if I were simply a student of sociology, I suppose I would go to those figures and get them. But while those are the figures, I am relying on my experience and I am relying on my instinct.

General sessions is full of cases with a single witness. I used to take my, turn in the summers in general sessions in part 1, the hopper part, you see where a man is accused of a felony so he is entitled to a jury trial. But we used to dispose of about 300 to 400 cases a month. Of course, we got pleas of guilty and everything––– jury trials. They were just one-witness cases. Whereas special sessions, of course they have lots of short cases, but they also have an occasional long case––– it is rare, I assume. They get into obscene literature; they get into unfair competition. They get into a case that will take sometimes three or four or five days to try.

But by witnessing the situation, by being around these courts by knowing what I know about prosecutions take––– a narcotic defendant. The State of New York has a law against narcotics. A man is arrested by a city policeman and taken to special sessions, and what happens? An officer is called, two officers, etc. You hear the oaths given. You don't know what they say. "Take the stand." These officers are known to the judges. They have perhaps years of creditable records behind them, because they work on specialties, the New York City police. The judges run right through the cases. They get right to the point. They turn to the defendant: "Anything to say?" No; he hasn't anything to say. Nothing at all. All right. I think that case could be tried in 20 minutes; 15 minutes. And the man is sent to jail without a jury.

The same man the next year is arrested by a Federal narcotic agent, and we have these all the time. One of our serious problems is the narcotic law, which, of course, ought not to be on the Federal statute books at all. It is a clear question of State law. It just blocks us. But not to go into that. The same man in the Federal court with two Federal agents, takes us about a day to try the same case and mete out the same punishment.

I think five to one, Senator, is very conservative, where, however––– I am not exactly logical––– it would not necessarily take anything like five times as many prohibition agents. I will work that out. If I just take an arbitrary figure and say $15,000,000 on one basis and $75,000,000 on another, I have got to make some little readjustments, maybe it is $70,000,000, because it would take more prohibition

agents than at present, I but it would not take five times as many prohibition agents, that is obvious. Of course you lose time going to court, going around. You have got to have more, but you have not got to have five times as many more. I will submit that memorandum.

Now, finally I might say in order that my position may be perfectly clear before this committee, that everything I have done and everything I have said since I have taken office has been for better law enforcement. I began talking about Federal police courts almost immediately after I had taken office. And I have got no support from anybody, no support from anybody on the abolition of the jury trial. On the 1st of November–––

Senator WALSH. Let me interrupt there. You said a while ago that it was the opinion of some able lawyers that the police court system could be inaugurated even under the existing Constitution?

Mr. BUCKNER. Yes.

Senator WALSH. So that these petty cases could be tried without a jury.

Mr. BUCKNER. Yes.

Senator WALSH. Can you furnish us any brief on that?

Mr. BUCKNER. I will undertake to get you a brief on the subject. I have not studied it, but I know that Professor Frankfurter of Harvard Law School believes that a constitutional amendment is not required, and I will ask him to prove it.

Senator WALSH. Thank you.

Mr. BUCKNER. I was going to add. Then when I saw that there was no chance at all to get these Federal police courts I then turned to the State of New York on the 1st of November. And as vigorously as I knew how I asked for the passage of a State law. That has been turned down at Albany.

Then as a mere matter of law enforcement, and nothing else, and since General Andrews himself is authority for saying that he can not do anything except work in partnership with States, and that the function of the Government is only to act as an auxiliary to the States, I have recently suggested that since the State of New York, although I have argued for it as vigorously as I know how on various public occasions, has now declined to go into partnership, and since it is quite apparent that so radical a measure as a Federal police court is not, certainly within a short time, practicable, I have recently made the suggestion that my clients, the citizens of New York, appeal to you gentlemen in Washington to modify the Volstead law in order to offer a bait to the New York legislature, since it repeatedly has refused to go into a partnership which General Andrews declares to be essential, and see if they can be enticed to come in, provided each State was left to itself to define intoxicating liquor.?But everything I have done, everything I have said has always been for more law enforcement, not for less law enforcement.

If you have to have the partnership which every official that I have talked to and every prohibition advocate that I have talked to has admitted to me that you must have, a partnership between the Federal Government and the State, although that is not the law, the law is comprehensive, but they have all said that that is the Federal function, just as General Andrews told you last Monday morning––– I say if that is so, then it would seem that if the State will

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not come in and join the partnership, and if it can not be compelled to come in, and, of course, it can not be compelled to come in, then of course, it is a perfectly rational step for more law enforcement to ask Congress to modify the Volstead law in order to dangle that bait in front of New York State and see if they will bite it, to itself fix the content of intoxicating liquor, in the hope that we over in New York can get the State aid without which, I take it, unless there is an entirely radical reorganization of the Federal machinery, prohibition can not be enforced, We must have one or the other or both working together.

And of course, after all, $75,000,000, is that to be taken as any such absurdity? I showed you yesterday that one plant in Jersey, stumbled onto by accident, as it were, while we were hurrying for the train for something else, had a maximum capacity of $75,000,000 worth of business. And General Andrews, in this memorandum for the budget that I read to you, said that in Philadelphia, with a single stroke of his squad, there was $50,000,000 a, month bootleg business he had stopped with his squad, which he wants to have increased, which is $600,000,000 a year. So, after all, there is nothing very staggering in such figures as I have given when it is mere carfare compared to the bootlegging business and bootlegging profits. I think that is all that I have to say.

Mr. CODMAN. Mr. Buckner, you have told us that your office has made a careful study of the diversion of alcohol from denaturing plants, and you have given us some idea of the extent of that diversion. Have you made any study which would lead you to know or even to estimate the number of stills there are working privately in New York, in private houses, and the amount of production of alcohol from those stills?

Mr. BUCKNER. No. The prohibition agents pick up a still case every little while. We never have much trouble about a still case, by the way. There is a question of fire hazard there. He does not stand a chance with the jury, so we can impose terms, and he gets 30 or 60 days.

Mr. BUCKNER. Well, he is mostly in the tenement houses, and there have been several fires in New York in the tenement houses, and the jury is excited about the fires, and the stills are, many of them, crude, cumbersome affairs.

But, of course, gentlemen, the next move would be this: Suppose you get this machinery. Suppose that General Andrews gets a very little increased force, and suppose that he doubles or trebles the salaries of his agents, and you give him all he wants, and he begins to stop this free flow of alcohol which we have been having, it is quite apparent, of course, that when that is stopped, why then the local manufacturer, the moonshiner, will begin in the cellars and in the garages and all over New York to supply this demand which has such enormous profits. I say that this organization I am outlining can not well be whistled down the wind on the theory that by me high-pressure administration one particular source of alcohol, from which it now is definitely secured, is very soon to be removed and obviated. Because if you stop one place, of course, you will have the problem coming from another place. So we should have a continuous

and effective and adequate machinery for always being in session for carrying on this war, if the war is to be carried on.

Senator REED of Missouri. Do you remember about how many stills have been seized by you in New York City?

Mr. BUCKNER. Very few. I am told by my assistant an average of about five a week.

Senator REED of Missouri. Do you have any doubt that there are 50,000 running there?

Senator REED of Missouri. You spoke about seizing stills, and about it being easy to convict on the matter of stills. You know, do you not, that an ordinary tin pail, a couple of bricks, and half a gallon of sour mash and a little fire will produce alcohol fast enough to get several people drunk? You know about that kind of a still, do you not?

Mr. CODMAN. Mr. Buckner, do you know anything about the use of corn sugar in the manufacture of alcohol?

Mr. CODMAN. You do not know then that alcohol can be manufactured from corn sugar without having any mash at all?

Mr. CODMAN. But, Mr. Buckner, you recognize that those are refinements that might become a problem if you solve the immediate problem that you have before you, do you not?

Mr. BUCKNER. Well, no question about that. When you have got a business in Philadelphia of $600,000,000 a year that General Andrews can stop in a few days, why somebody is going to attempt to supply in an outlaw fashion that kind of a demand unless he is suppressed and punished.

Senator REED of Missouri. Then what I asked you in the beginning was that the real trouble with this whole question was the demand.

Mr. BUCKNER. No; you did not ask me that. You wanted to know, if there was no demand, would there be a supply, and I said no. I will let that answer stand. I do not want to say what the real trouble is. I do not know that I know.

Senator REED of Missouri. Well, that the American people want to get alcohol for beverage purposes, is that the trouble?

Mr. BUCKNER. I do not :know what the trouble is, whether it is the law or the nonenforcement. I suspect the latter. I do not know.

Senator REED of Missouri. Now Mr. Buckner, I do not want to take your time, but is not this broad line of some assistance in getting at the trouble? If a man steals another man's watch that man is mad about it and wants to help the prosecution, that is the case, is it not? And so with all of these crimes which we describe as bad in themselves, malum in se. Somebody is injured against his will. He wants to help the prosecution. And everybody else recognizes

the felony of the act, and everybody wants to see the criminal convicted. Now that is true of real crimes. When I say "everybody" I mean everybody that is a respectable citizen. That is true of real crimes, is it not? When I say "real crimes" I mean crimes that are bad in themselves.

Senator REED of Missouri. Yes; and the general public wants to see such a person convicted. And when two men both want to do the same thing, and when each of them thinks that the thing he is doing is a natural right, and that it is not doing any one of them any harm, you find an entirely different situation, do you not?

Mr. BUCKNER. I do not know, because you see we have no machinery to try. I think they would cut it out if they thought they would be arrested, Senator.

Senator REED of Missouri. Yes; they might cut it out. But I am asking you if, in the actual enforcement of the law, if you are a bartender and sell me a glass of beer, and I want it, and you want to sell it, it is not true that either one of us is very anxious to see the other fellow convicted; is that not true?

Mr. BUCKNER. Well, I could not answer that. You give me these 85 Federal judges for my district and ask me to come back next year and I can talk more intelligently.

Senator REED of Missouri. Well, have you not had this experience? I am not trying to corner you, but is it not a fact that every prosecuting officer as always had before him that in a crime that is bad in itself public opinion, as well as the injured party, assists in the prosecution?

Mr. BUCKNER. Well, yes; but that is just the extreme case. I mean, you can have your hue and cry after a taxi bandit. He does not stand a chance. He is convicted before be starts. His protection only is the judge, really. On the other hand, we get convictions in cases where there is no great, either personal or common, community excitement about it, and until the facts prove the contrary I shall continue to believe that New York juries, put under oath, like lawyers are put under their oaths, will enforce this law if you give the machinery so that not merely the little fellow is prosecuted, and if you so increase the salaries of your agents that you try to improve their caliber. Whether they can be improved I do not know. But about the next experiment that the Government must try is to get the agents up to the caliber where they are impressive on the jury. We have no trouble with post-office inspectors.

Senator REED of Missouri. Surely not. In the post-office cases somebody has robbed the mails, or somebody has sent indecent matter through the mails he has done something that is offensive to the sense of morals of the community.

Mr. BUCKNER. Yes; but you have got cases that appeal very strongly to the sympathies of the jury, like a man with two or three children who around Christmas time takes a package or two, and these very vigilant post office inspectors grab him. The juries will convict him just the same.

Mr. BUCKNER. I would say that I have not had enough laboratory experience, since you do not give me the equipment to conduct laboratory experiments to answer your question intelligently.

Senator REED of Missouri. I am not criticizing you. I think you have done your best.

Senator REED of Missouri. I haven't any doubt about that. But I did think that as an experienced prosecutor you would not hesitate to say that it was much easier to got a conviction where the crime involved a general moral turpitude than where the crime was merely malum prohibitum.

Mr. BUCKNER. I won't admit that. I think I can carry a jury to the point of convicting in a prohibition case if every one of them is wet, if every one of them wants the law repealed, and I think I can do that on the basis that a law which is on the books and not enforced is simply subsidizing crime, is simply enriching a lawless class and, of course, inevitably corrupting government agencies. I believe that, if the testimony which is produced is such that they believe it. Now, in our cases––– I had one of my assistants, a 6-foot young man, a college graduate, leader of his class, a Yale Law School graduate, where a couple of men came into our chemist's office, not 100 feet from the door of the private office of this young man in my office, and attempted to buy a certificate of a half of 1 per cent for beer instead of 3 or 4 per cent, as the analysis was and it was reported to us. This young man wanted once and for all, so far as this particular case was concerned, to know for himself, and at the risk of being ridiculed by the attorney on the opposite side about the great dignity of the bar, this 6 foot young man crawled under a desk and stayed there for an hour and a half until these two beer agents came down and paid the money over to the chemist and got him to return a certificate of one-half of 1 per cent.

In that case the defendants did not have a chance. It did not make any difference that the jury was wet. We make no effort to weed out the wets or keep the drys. We convicted those men merely because they could see this young man was telling the truth.

I do not know, but I suppose that in time and with intelligent supervision the morale and the caliber of the prohibition agents could be raised––– not very much, and not all at once. The way to start, as I see it, is to pay them twice as much as they now receive.

Senator REED of Missouri. I did not ask you that. I asked you if there was not a difference––– I do not want to argue it. I asked you if you did not find it more difficult to enforce a law where the two people each wanted to commit the act and did not regard it as a bad act than you would in a case where everybody conceded the act to be a bad act.

Mr. BUCKNER. Of course, that is perfectly true as an academic proposition. There is no doubt about that.

Senator REED of Missouri. When you padlock a place, have you not found that frequently the man who runs the place just goes and opens up another place?

Mr. BUCKNER. I do not know how frequently. Of course, he is under a personal injunction; he can be brought down, and if we had the necessary agents to follow it up I would not say that was true frequently.

Senator REED of Missouri. Well, he opens up in somebody else's name––– his wife's name, or his boy's name, or his hired man's name. Don't they do that right along?

Mr. BUCKNER. I do not think so. I don't know. When it comes to the spectacular places with a large money investment, I do not think they do. When it comes to the cigar stores, the speak-easies, and holes in the wall and the riffraff and the Third Avenue saloons, and in the Bronx, without any equipment to follow them up we do not know what they do. They could, and get away with it until we get agents enough.

Mr. CODMAN. Mr. Buckner, I want to ask if you have seen this bill which has been introduced, S. 3891.

(The bill referred to, S. 3891 introduced by Senator Edge, April 5, 1926, is here printed in full:)

Mr. BUCKNER. So far as any particular bill is concerned, gentlemen, so often so much turns on a semicolon or a stray sentence and its relation to other bills that I think I prefer to be excused from taking up any one of the 30 bills before you and commenting on it. I have given you my ideas generally, and if anything I have said that has been helpful it can be applied to any particular bill that meets the occasion.

Mr. CODMAN. Then I would like for you to state once more––– it may be in the record already––– what you hold to be the remedy, provided you can not get the legal machinery for one reason or another.

Mr. BUCKNER. As I glance at that bill it would seem to me that it goes much further than I would go. My suggestion was that when a State defines for itself alcoholic content that should become automatically Federal law in that State, by incorporation, under the concurrent power, although it looks to me as if that more or less usurps the Federal functions. My suggestion simply was, if New York State, for instance, adopts a standard which is more than one-half of I per cent that standard should be adopted so long as it is in good faith and below some arbitrary point that should be fixed by Congress––– that that should be Federal law in that State, so that you can carry on your partnership on a basis that is satisfactory to the other party. The only possible objection to it is a purely an a priori one. Would that not lead to different kinds of prohibition in different States? I would say yes, and we have different kinds of prohibition in different States now. There is one kind of prohibition in Kansas and another kind of prohibition in New York.

It is a very simple experiment, since such a high authority as General Andrews himself says that he delimits the Federal function

as only that of an assisting partner. And since you must have the other partner, and since in my State the other partner has refused my invitation to come in, delivered in public on many occasions, why not offer that partner another inducement and see if he will refuse that. I think the Federal law ought to be retained in this auxiliary way, and it may be that what I suggest goes further than that bill appears to suggest. It looks as if that is nothing but a wet Kenyon law. I am not certain; I am just glancing at it.

Anyway, that is a detail. The main thing that this committee has brought out, General Andrews states––– and I must say that he voices what I have heard from lawyers and prohibition societies and some officials––– that the function of the Federal Government is to deal in an auxiliary way and not to be responsible for local enforcement.

Now, that is not the law; that is cutting down the law by administrative pro tanto repeal. That being so, the moment that concession is made it is an ineluctable conclusion that you must have the State for a partner, and if the State will not come in on Federal terms, why, you must necessarily attempt to get the State into the partnership on State terms. I have taken that up only after I have been turned down by the State of New York.

Senator WALSH. That is all, Mr. Buckner. The committee is very Much obliged to you indeed.

Mr. BUCKNER. I will submit within a few days, perhaps next week, those two memoranda that I told you I would submit for your record.

Senator WALSH. And have the kindness to endeavor to communicate with Doctor Frankfurter on that other matter.

Senator WALSH. The chairman of the committee has been taken ill and probably will not be with us for a few days. He has requested me to act as chairman in his absence.

Mr. CODMAN. Senator Walsh, of course it is obvious that I should not offer another witness at 5 minutes to 12, so I suppose you will adjourn for the day. I should like to know.

Senator WALSH. All the members of the committee feel such a deep interest in the matter that is now pending before the Senate that it will be impossible for them to be present this afternoon at least. Perhaps hereafter we may continue during the afternoon. I hope that we may be so situated that we can.

(Whereupon, at 12 o'clock p. m., the subcommittee adjourned to meet at 10 o'clock a. m. to-morrow, Friday, April 9, 1926.)