Target Rich Environment: Legislatures propose, the people dispose
Neal Dow’s Maine Law, passed in 1851 was the nation’s first adventure with prohibition. In 1884 the legislature “forever prohibited the manufacture and sale of alcoholic fluids except for medicinal and mechanical purposes.”
The 1911 Encyclopedia Britannica’s article on Maine took note and offered judgment. “...the law labours under the disadvantage of all laws not vigorously sustained by general public sentiment and is grossly violated. For the most part it is executed to the degree demanded by local sentiment...” It says no more, but I infer that kindly philanthropists were always on hand in Portland to shield thirsty sailors from the horrors of dessication, while sentiment in, e.g., Farmington upheld the law, making it lots more effective.
The Drys disregarded the Great Eleventh’s clear verdict and pushed through national prohibition with results that are now well known.
I submit that there is a broader lesson about “laws not vigorously sustained by general public sentiment,” is one that legislatures are prone to ignore. Our legislators seem to suffer from the persistent delusion that the “general public” of law-abiding citizens are always ready, even eager, to obey new laws and regulations. Sure, they assume that there will be sociopaths, psychopaths, professional criminals, and rowdies who habitually disregard the law, and they provide penalties for such violators.
Where they repeatedly grow wrong is in assuming that normally law-abiding citizens can always be trusted to obey every law simply because the laws are passed in due form by their elected representatives. This is not the case, and the history of the 18th Amendment and the Volstead Act which applied it shows this.
Representative Volstead expected violations and provided criminal penalties for violators. Al Capone is more a household name than Andrew Volstead and the well-known history of organized crime diverts attention from the multitude of ways that otherwise law-abiding citizens habitually disregarded the national and state prohibition laws.
Evasions were afoot long before the bootleggers got themselves properly organized and even before “Dry Day,” Jan. 16, 1920. Weeks before D-Day The Daily Mail of Fredericton, New Brunswick reported that “Enough smuggled Canadian stock is said to be hidden in the woods [over the Maine border] to keep authorities busy for over a year.” The head of U.S. Customs told Congress that already Canadian booze was flooding across the borders and his forces had been able to intercept only an “infinitesimal quantity” of the torrent. During the first seven months 900,000 cases had accumulated right across the border city in Windsor, Ontario. Portable stills were on sale in cities across the country within days. In Philadelphia, a center of the chemical industry, industrial alcohol was renatured, diluted, flavored with Juniper oil and made available to thirsty citizens a week after D-Day.
Before Dutch Schultz, Bug Moran, Johnny Torio and Al Capone (“I make my money by supplying a public demand.”) made headlines and the St. Valentine’s Day massacre took place, whole Chicago neighborhoods reeked from mom and pop apartment distilleries.
It’s not possible to make a complete list of all the maneuvers, evasions, violations, tactics and contrivances devised by millions of separate communities, groups and citizens to frustrate the aims of legislation.
My personal favorite legal evasion was made possible by the Volstead Act’s exemption for sacramental wine. The result, as a Reform rabbi in Providence, R.I., explained: “our local Orthodox rabbis have broken the law continuously; they sell wine for profit, then sell it to anyone, Jew or non-Jew, who is willing to pay for it.” The affluent Reform congregations of western European origins opposed this abuse, but the poor, mostly orthodox, eastern European rabbis saw their opportunities and took ‘em. In Los Angeles (very dry in those days) membership in Talmud Torah jumped from 180 to 1,000 in a few months. In San Leandro seven Jewish families produced a temple congregation of 250. Sacramental champagne, sacramental creme de menthe, sacramental brandy could all be obtained in shops serving the pious. There were sudden converts to Judaism in Harlem. Rabbi Houlihan and Rabbi Maguire grew beards, dressed in black and served new converts in Manhattan apartments.
Anheuser-Busch shipped 6,000,000 pounds of malt syrup annually in containers with labels warning purchasers exactly what to do to avoid producing beer. My father claimed he transferred from Yale to Harvard because the Yale authorities allowed the New Haven police to raid the campus, forcing him to pull the plug on twenty gallons of the stuff. He figured that Harvard would never allow the Cambridge police in its sacred precincts. True or not, it made a good story.
Similar warning were printed on the “grape bricks” shipped in tens of thousands of cases shipped by the California vineyards.
Clause 2 of the Volstead Act accorded concurrent powers to the states and enforcement measures depended on the prevailing cultural norms, just as they had in Maine communities. . Maryland never passed a dry law and New York repealed its in 1929. Eighteen states with prohibition laws never appropriated a single dollar for enforcement. The Anti-Saloon League raged: “....any state that fails to pass enforcement legislation should become a ward of the nation backward in loyalty to the nation.” It made no difference.
Ultra-dry states went their own way. Iowa made sterno illegal. Vermont enacted mandatory jail sentences for insobriety. In Mississippi debts incurred while under the influence were uncollectible. Indiana gave police power to train conductors to enforce its prohibition laws.
The Law of Unintended Consequence operated on the Volstead Act with devastating consequences. The Act stipulated jury trials for violators, unleashing a fourteen-year flood of federal court cases. With the US Justice Department demanding 10,000 convictions per year, 44 percent if the US attorneys’ time spent on Prohibition cases. In West Virginia and North Carolina the percentage was 70 percent; in Minnesota 90 percent. Does one detect a certain similarity with the problems of drug-law enforcement?
Judge Emory Buckner summed up the result. “I found that the great United States Court in the Southern District of New York had degenerated. Not into a police court...but whatever is in the subcellar under a police court.” Six judges and one magistrate had to handle 50,000 cases every year but police court rules were unconstitutional. Juries had to be empaneled and virtual jury nullification ran wild.
A federal district judge in Minnesota, a dedicated dry known as the bootlegger’s terror, sat down at his desk in 1925 to write his good-bye.. “I started, in March 1923, to rush that branch of litigation and thought I would end it, but it ended me.” Then he blew his brains out.
Some jurisdictions defied federal law de facto if not de jure. A journalist reported that “It was absolutely impossible to get a drink in Detroit unless you walked at least ten feet and told the busy bartender what you wanted in a voice loud enough for him to hear you above the uproar."
New York City never went dry. Most of the prohibition agents there were decent fellows content with moderate, regular pay-offs. Sure, they had to make some arrests from time to time to keep their jobs, but of the 4,000 arrests under the state’s Mullan-Gage Act only 500 produced indictments and of six convictions only one resulted in a jail sentence. Fines were simply a cost of doing business, like utility bills.
The Bureau’s agents were paid $1,800 per year in New York, little over $20,000 in today’s money. Yet thousands lined up for the job. I assume this requires no explanation. I propose as a general rule that in any situation where the police regard their mission as futile and the rewards for turning a blind eye are substantial then corruption rules. N.B., Mexican police salaries average $7,500 per year.
When the Democrats held their 1924 convention in San Francisco, the Republican mayor John Rolph provided the delegates and press corps with what H.L. Mencken described as “Bourbon of the very first chop, Bourbon aged in contented barrels of the finest white oak, Bourbon of really ultra and superior quality.” delivered for free by “small committees of refined and well-dressed ladies.”
In contrast, the Democratic mayor of Cleveland, a vicious partisan, shut down all the city’s speakeasies when the Republican convention came to town, causing great suffering among the delegates.
Readers will find a more complete enumeration of the means and methods of evasion in David Okrent’s Last Call, which can be found in Farmington’s Cutler Library. It’s a good read and I strongly recommend it.
Again, . “...the law labours under the disadvantage of all laws not vigorously sustained by general public sentiment and is grossly violated. This axiom has lost none of its validity.