Prohibition Without Propaganda: The Plain Facts of the Crisis

I

NATIONAL prohibition has presented the American people with several questions of major importance.

Has prohibition as a social and economic measure justified itself in substantial results?

Has the nation as a whole accepted, or is it in the way of accepting, prohibition as a permanent policy?

What contribution does our experience with the Eighteenth Amendment and the Volstead Act make to our knowledge of the science of social control?

Is the policy embodied in these measures in line with current trends in American political thought and practice?

Upon what sanctions does this policy rest and to what principle must ultimate appeal be made for its maintenance?

These questions are pressing for answer and it is perhaps not an exaggeration to say that they make prohibition our foremost domestic issue. It is too much to expect conclusive answers to them, but there is light to be had upon them all. The fact that so many of our social scientists continue to regard prohibition as merely a ‘reform’ measure and to look upon it somewhat superciliously seems to the writer to indicate an extraordinary want of insight. Even if one has little interest in the liquor question, as such, the collective effort to suppress the traffic in intoxicants by drastic means has important implications for the sociologist. It is most unfortunate that students of social science have given it so little attention.

There are, plainly, two wholly different angles from which the foregoing questions may be approached. The answers may be sought either in terms of abstract right and wrong or in terms of developing social experience — that is to say, in terms of theoretical or of practical ethics. On both sides of the prohibition issue are found persons who take an abstract, theoretical view of the matter, and who dismiss the question with an affirmation either that prohibition is incontestably right or that it is incontestably wrong. ‘It would make no difference to me,’ an eminent American jurist said to the writer, ‘how much sociological data might be presented in support of prohibition. I consider it morally wrong,’ On the other hand one hears the contention: ‘What possible difference can it make whether prohibition be regarded as successful or not? It is morally right and must be maintained as a national policy whether its concrete results are considered to be satisfactory or not.’

Because the issue is so sharply controversial, it seems proper to state at the outset my own position — or bias, if that is a more candid word. My treatment of the subject will be unacceptable to anyone whose opinion rests upon theoretical considerations rather than upon cumulative social experience. I am one of those who support prohibition as at present defined by constitutional amendment and Federal statute, but I should be at a loss to defend this position by reference to ethical concepts alone. In a scientific age no political or social measure can find ultimate sanction outside social experience. If prohibition should, after adequate trial, prove ineffectual as a means of destroying the social evils at which it is aimed, I, for one, should favor some other expedient.

The claim of prohibition to support rests, as I see it, upon the fact that it represents one possible method, not hitherto tried on so comprehensive a scale, of accomplishing a social task which has thus far baffled all collective efforts. In the long run it must be judged by the degree to which its material and moral results commend themselves to the nation. Like any other social policy its worth must be measured by the yardstick of events. In no other way can it acquire permanence. It follows similarly from the view that I am putting forward that a practical demonstration of the success of prohibition, socially and politically, would presently overcome all objections to it on the familiar ground of infringement of ‘natural rights.’ For, after all, it is hard to defend the position that prohibition makes any greater inroads upon the sphere of hitherto unrestricted private action than do certain other political measures that have been adopted in recent years over the most emphatic and sincere protest — measures that have nevertheless come to be generally accepted as consistent with democratic government.

In expressing this judgment, however, I wish to disclaim any attitude of intolerance toward the person who is irreconcilable to prohibition on moral grounds. I would accord to a ‘conscientious objector’ against prohibition the same respect and liberty of dissent that I believe should be accorded to one who objects to military service on grounds of conscience. But the mere existence of dissent does not invalidate a law. And, in any case, there appear to be few whose opposition to prohibition is maintained on the level of a great moral urge. I have not met more than a score for whom such a claim could be made.

And it is precisely because the case for prohibition must be tried in the court of social experience that the questions raised at the beginning of this article are of such grave and pressing importance. Whatever merits or defects the recent report on prohibition issued by the research department of the Federal Council of Churches may be considered to have, it is now generally recognized that it did not overemphasize the critical aspect of the present situation. The annual convention of the Anti-Saloon League which was held shortly afterward was frankly a ‘crisis convention.’ There was no apparent disposition in that assemblage of ‘dry’ leaders to conceal the fact that a crucial test impends. Not that five or six years may be regarded as the appropriate demonstration period for such a colossal venture in social control: it might very well be argued that a decade is a short time in which to give the quality of permanence to a régime that has in it such essentially novel elements. But social and political measures do not receive their final testing at the hands of social scientists, but at the hands of an impatient populace, which makes up its mind on the basis of temporary impressions conditioned by strong prejudices. It is quite evident that the present tendency of the proverbial man-in-the-street is to regard the Volstead Act as on the defensive because of the huge difficulties that have been encountered in the effort to enforce it. The political testing of prohibition will not wait for social scientists to complete their observations.

II

The effort to appraise national prohibition is beset with manifest difficulties because the period of our experience with it has coincided with social and economic changes which have profoundly influenced the life of the nation. When the Volstead Act became effective the country was in the throes of post-war adjustments and was on the verge of one of its periodic depressions due to a downward swing of that mysterious thing known as the business cycle. Then came a period of extraordinary prosperity. Much of the propaganda that has thrown the prohibition question into confusion has been due to a failure to recognize the existence of many other causes for the phenomena that have been pointed to as resulting directly from prohibition. This lack of discrimination is just as fatal to the arguments on one side of the controversy as to those on the other.

Many people have been misled also by the assembling of testimony which had the appearance of being representative but which was in reality ‘selected’ and biased. For example, a certain magazine which is read by manufacturers circulated questionnaires among a thousand business and professional people, some of them very well known, asking for their opinion as to the effects of prohibition. The result was overwhelmingly ‘dry,’ and has been used all over the country to assure the public that business and professional men in America are thoroughly committed to prohibition. It has been referred to as a ‘nation-wide study.’ Yet one fact concerning it has been completely overlooked, although it was stated frankly by the magazine in reporting the initial inquiry —the questionnaires were sent to a list of persons who prior to the adoption of the Eighteenth Amendment had signed a memorial to Congress for the abolition of the liquor traffic. The purpose was legitimate enough — namely, to learn whether experience with prohibition had changed their minds. But to use such an inquiry as a method of determining public opinion is about as valid as an attempt to learn the attitude of the country toward religion by sending a questionnaire to ministers. And the use of the results was grossly misleading and mischievous, creating as it did a wholly unwarranted sense of security.

The study undertaken by the Federal Council’s research department was made with full recognition of the attendant difficulties. It was designed to be only a general survey, or, so to speak, an assay of available materials that might serve as ‘soundings’ until the more extensive studies needed should be made by research agencies thoroughly equipped for the task. The report which resulted from the study was warranted, not by any semblance of conclusiveness in the findings, but by the fact that they disclosed an undeniable trend in the social consequences of prohibition whose significance was clear despite the lack of adequate data.

We have been asked why an organization committed to the cause of prohibition should have attempted an ‘impartial’ report upon it. Are we not at war with the liquor traffic? To publish a report which includes the weaknesses as well as the strength of the prohibition régime seems like informing the enemy in time of war where the country’s defenses are vulnerable! There are many to whom such a course is quite anomalous. Granting their premises, there is no answer to their argument. If a great social issue must be settled as the boundary disputes of nations have hitherto been settled, — by combat, — then a frank report upon it by those who have an interest in the outcome is without justification. But lying back of our report was a conviction that such an issue can be rightly settled only by the people as a whole, not by warring factions. And the people can settle it rightly only if they are in possession of the facts, particularly those facts which may be admonitory. Whether such a report is justified or not depends upon one’s theory of social progress.

The public has gained a somewhat erroneous impression as to the findings of our study. The report was in frank contrast to the usual statements of religious bodies on this question, and the press, with an unerring instinct for the sensational, seized upon what were termed ‘admissions’ and accorded them a disproportionate emphasis. Of course, this was not unforeseen, but there appeared to be no other way to clear the air of the general confusion that prevailed with respect to the facts than to present them in unbiased fashion. The distortion that resulted in a good many instances was to be deplored, but it was, perhaps, not too great a price to pay for the dispelling of illusions. The aftermath of publication is bringing a realization that the report was by no means a one-sided affair.

Our first important finding was the undoubted material and social gain that has resulted to the nation as a whole from the outlawing of the liquor traffic and particularly from the passing of the saloon. Living-conditions among the working people improved, savings were increased, the death-rate from alcoholic diseases declined, cases of dependency due to alcoholism became less numerous, arrests for drunkenness fell off very materially, and there was a reduction in the number of arrests for other offenses. In general, these changes were not sudden, but began with the war-time restrictions upon the manufacture of liquor and continued until complete prohibition was adopted. The more striking of these results cannot be measured statistically, but they are supported by abundant evidence.

But the second major finding of the study revealed that these gains were not entirely permanent. The impressive decline that prohibition brought about in those social phenomena that are commonly taken to be indices of the amount of liquor-consumption terminated abruptly in 1920, or approximately at that time, and a counter trend was at once established. This trend has continued with disquieting steadiness since that time, with this reservation, that the picture for 1924 shows some indications that the present year may mark the climax of the reaction. In particular, the death-rate from alcoholism, according to incomplete data tabulated from the Federal Census returns for 1924, has again begun to recede. The counter trend has, to be sure, by no means canceled all the earlier gains. It has, however, rendered them less secure. It would seem clear that the success of prohibition from a social point of view depends upon the prompt overcoming of this unfavorable trend.

The reaction was, of course, to be expected, and it was expected. It is doubtful, however, if even the least sanguine of prohibitionists in 1920 anticipated that it would be so great and so persistent. It has been due presumably to three factors. First, and chiefly, the illicit liquor-trade had not developed in 1920; the traffic in intoxicants had been put to sleep, so to speak, though not asphyxiated. Much time was required to assemble the resources and develop the technique necessary successfully to defy the Constitution of the United States. Secondly, the zeal of the prohibition reform ran true to type and spent itself on the external, structural, and, on the whole, the less vital aspect of the problem, leaving to governmental administration not only the task of enforcement but the task of winning acceptance of the law by the people, or that portion of the people that presently began to make its hostility felt. Thirdly, this hostility became more marked as time went on, in keeping with the general tendency among our people to change their mood in any matter that has been made the subject of a crusade. Thus we have been witnessing the steady growth of an illicit industry that offers such enormous rewards as to be wellnigh insuppressible, accompanied by a cooling of the zeal of the reformers and a growing resentment on the part of the forcibly reformed.

It is gratuitous to assume that the reaction of the past four years is due to a lessened efficiency of the enforcement organization of the government. This assumption seems to be quite contrary to fact. The machinery of enforcement is undoubtedly stronger now than it was in 1920. What the rise of the liquor curve indicates is the extent to which the outlaw liquor-industry has outstripped the efforts of the government to perfect its own organization.

The question of the effect of prohibition upon crime requires special notice. It is undeniable that the number of arrests in proportion to population for all offenses combined is higher now than at any time in the past ten years. It is equally true, however, that the significant increases are in misdemeanors, not in serious offenses. A large proportion of them are minor violations of the traffic laws. In spite of all the current discussion of a ‘crime wave,’ there is no statistical evidence of such a phenomenon. On the other hand, there is no blinking the fact that increases in arrests for drunkenness, which had reached a low point with the advent of national prohibition, account for a very substantial part of the total increase in arrests, particularly up to the end of 1923.

The important point in this connection appears to be that such crime data as are available — and they are meagre — afford no impressive evidence that prohibition has affected the crime level in any important way.

III

But the foregoing considerations do not tell the full story of the social effects of prohibition. An element of the situation that was perhaps not sufficiently elaborated in our report is the overpowering influence of political and moral factors which persist without reference to the concrete social gains that are undoubtedly attributable to the prohibition régime. The crucial point in the present controversy is, after all, not a question of fact as to whether or not the law has produced specific, desirable social results. The gravity of the situation arises rather out of the fact that a régime which has brought about definite material and social gains should be imperiled by a political and moral crisis precipitated by popular opposition to it in many sections of the country. This distinction between tangible, material effects of prohibition, on the one hand, and certain less tangible but equally significant political and moral effects on the other, is of the utmost importance. Mr. Hoover called attention to it in an interview some months ago, in which he expressed much satisfaction with the former set of results, but less with the latter.

The degree of optimism or of concern with which one views the situation depends in part upon which set of facts one dwells most upon. The friends of prohibition are mainly preoccupied with the important and undeniable gains that have followed upon the outlawing of the liquor traffic, while its opponents, so far as they are sincere and disinterested, are chiefly concerned with other aspects of the situation. From their point of view national prohibition might conceivably be pronounced a substantial success by those most competent to judge its objective social results and yet fail to justify itself because of the incubus of lawlessness and corruption from which it has thus far not been able to free itself. It is not too much to say that if the moral and political problems that have arisen in connection with the prohibition regime could be satisfactorily solved the objective consequences of the closing of the saloons would more than justify the Eighteenth Amendment. But if prohibition is to become a permanent and accepted policy the law must be made sufficiently effective to acquire the same sanction that is accorded to other laws which regulate conduct.

The question here raised is one of political science and is quite independent of the ethics of the prohibition issue. Many other laws pass through a similar period of testing. Any measure that puts restraint upon the habits and predilections of a large part of the people must win such overwhelming assent that those who refuse to conform shall be a thoroughly manageable minority. Not only so, but those who violate it must be predominantly of that element in the community which is generally regarded as antisocial: if they are of the socially approved their conduct is likely to outweigh any legislative attempt to outlaw it. If the law is to sustain itself it must win a measure of assent that will give it full and permanent social sanction.

It is all very well to contend that the violation of a law is no reason for abandoning it. The fact remains that any law which continues to be defied as the Volstead Act is now defied in many of our most populous communities has to that extent been virtually abandoned already. The question whether it remains on the statute books or not is of secondary importance. I am saying this as one who believes that it is eminently worth while to keep the Volstead Act on the statute books, but that course can be defended only as the conditions now obtaining can be progressively improved.

The prohibition movement is not without wise and able leaders who realize all this. The difficulty is that the crisis has found the movement unprepared. Its technique has been developed almost wholly with reference to a militant legislative campaign. The present task is largely one of securing wider popular acceptance of the law whose enactment was secured with unexpected ease.

For this new task the militant strategy is inadequate. For the most part the violators of the prohibition law are immune to any moralizing on the subject. The effort to assure them that they are bad citizens, or even criminals, leaves them cold. Nullification is no longer merely an instrument of revolt: it is coming to be a philosophy, if not a cult. I was recently discussing the prohibition question with a group of men, several of whom were well-known educators, while others were writers who enjoyed a national reputation. In general, they would be considered a thoroughly socially minded and publicspirited group. In the course of the discussion I was assured that with one or two exceptions all the men present believed in violating the Volstead Act at every opportunity that offers. These were highly trained and disciplined men. We may probably look for the spread of the opinions to which they gave voice, particularly in the colleges.

The third major finding of our study had to do with the problem of enforcement. We undertook to test the claim that all the inadequacies of the prohibition régime are directly due to remissness on the part of the constituted authorities. It is commonly asserted that all the so-called failures of prohibition are rather the failures of nonprohibition! This is partly true, but it is in part a begging of the question. If there were no criteria of effective enforcement except success, then all failures might be visited upon those who carry responsibility for enforcing the law. But obviously there are many conceivable laws that no government could enforce. The real question is, how much can be expected of enforcement and how far is the success of a law dependent upon the public attitude toward it. But more of that presently.

It requires little study of the situation at Washington and elsewhere to convince one that extensive violations of the Volstead Act have, in effect, been encouraged by the failure of the Government to make them difficult and costly. In its enforcement policy and programme there has been such a measure of inefficiency, weakness, and in many cases actual corruption (on the part of prohibition agents) as would inevitably cripple the operation of any law, to say nothing of a statute which demands an unusual amount of vigilance and an elaborate enforcement technique. There is much to be said by way of extenuating the failures of enforcement on the ground of the unprecedented difficulties that it presents. But there is no excuse for the extent of permit abuses which have flooded the country with industrial alcohol that has been diverted from legitimate uses, or for the scandals connected with the withdrawals of ‘ sacramental ‘ wine, or for the leakage of spirituous liquors from warehouses and of beer from dealcoholizing plants, or for the general lack of coördination of effort on the part of the several government departments and divisions that are responsible for the administration of the law. The smuggling of liquor which went on almost without let or hindrance until a few months ago brought our Government into disrepute all over the world.

Responsibility for this situation lay chiefly with the Treasury Department . It was, to be sure, impossible to deal with smuggling without the equipment which Congress was tardy in providing, but it is unreasonable to suppose that a Congress as obviously ‘dry’ as ours has been for several years would not have responded much earlier had there been anything like strong and earnest leadership in the administration.

But it is easy to make too much of all this. The failures of the Government with respect to the prohibition laws are all of a piece with other Federal delinquencies and inadequacies. This particular case is more conspicuous and the results are more serious because this law is one that depends so largely upon governmental efficiency. Laws are normally self-enforcing. There is, it is true, a wide range of this self-enforcement; some laws are more dependent upon force than others. In the case of laws that are clearly established in the popular will, the responsibility for making them effective rests more largely with the Government. When the law in question is one that is still fighting for popular acceptance it is in the nature of the case not possible to expect so much of the Government. The fate of such a law rests more in the hands of the people themselves than in the hands of enforcement officers.

Our experience with prohibition has thrown much light on the problem of legal administration, in that it has made clear the relationship of the Federal and the state governments in any matter where, as in this case, they have concurrent power. While it cannot be too strongly emphasized that the Federal Government has a responsibility for prohibition that it alone can discharge, it is equally true that the local and police phases of the task are quite beyond the power of the Federal Government as now organized. When one contemplates the plight of the Federal Government when confronted with criminal activities that are countrywide in their scope he understands the political significance of the old controversy over ‘States’ rights.’ It is not merely a question of ‘rights’ in the sense of exclusive privileges, but of the limits of physical possibility. Our Federal judicial system, for example, was never designed to deal with police cases, and it cannot be forced into such functions without an enormous increase in its equipment as well as a revolutionary change in its procedure. As the Federal district attorney in New York City rightly says, either the state must take responsibility for the suppression of minor offenses, which we commonly consider police cases, or the Federal system must be enlarged to include police courts for the disposition of petty cases. Much criticism has been directed at the district attorneys because so many violators of the Volstead Act have escaped with light sentences meted out to them in return for entering a plea of guilty. Ordinarily such criticisms would be justified, but in this case the alternative would be a jury trial for every offense, with the prospect that the court calendars would be increasingly congested.

The situation is, of course, most serious in New York City, where there is no state enforcement law to fall back upon. Wherever there is a state statute the cases may be brought in the local courts and disposed of in the usual manner for minor offenses. But even then the state and the municipality must accept the larger share of the responsibility for the apprehension and trial of the small offender in order that the limited resources of the Federal Government may be concentrated upon the more important cases. This division of responsibility underlies the whole business of prohibition enforcement. No matter what verbal niceties may be resorted to in order to avoid a repudiation of responsibility on the part of the Federal Government, every informed person knows that this is about the way the matter stands. It is too much to expect that any responsible person at Washington is going to proclaim immunity for small offenders — that is much too crude a way to put it. Nevertheless a virtual immunity exists in many of our cities and will continue to exist as long as the people of those cities do not want enforcement badly enough to make it practicable by a much more general observance.

Of the utmost importance in this connection is the drift that is everywhere apparent in America toward political decentralization. ‘Not more Federal government, ‘ says Mr. Coolidge, ‘but better local government.’ And no Coolidge utterance has been more popular. Witness the fate of the Child Labor Amendment. The reorganization of prohibition enforcement during the present year — which has marked, by the way, a deliberate departure from the previous intimate relationship between the Government and the prohibition lobby — has proceeded in accord with this principle of decentralization and the sharing of responsibility with the states. It has even extended to the administrative procedure. It is difficult to see what other course the administration could consistently take in the event of a failure of the present drive for enforcement than to put the problem squarely and finally up to the states and cities whose immediate concern it is.

IV

But the reader will wish to know how, in view of the conviction here recorded, — that the people themselves hold the destiny of prohibition in their hands, — I can justify the maintenance of the Volstead Act when it appears to be only partly enforcible in important sections of the country. The answer is that no one can predict what effect a serious and sustained effort at efficient enforcement of the law will have on the whole situation. I am assuming that, if the politicians at Washington do not cripple his efforts, General Andrews is going to give us a demonstration along this line. Suppose that the Federal Government should attain a reasonable degree of success with its own end of the task — that is, the ‘wholesale’ end of it; that liquor-smuggling is reduced to negligible quantities; that the scandals of industrial alcohol are eliminated; that effectual control is established over the big ‘breweries,’ or dealcoholizing plants, from which beer has been finding its way to an illicit market; that the big conspiracies that have made possible country-wide illicit operations are presently broken up. Would not the result presumably be to take the profit out of the business, to reduce the supply of potable liquors to dregs and thus destroy the market, and to create a ‘psychology’ of respect for the law instead of distrust and contempt, of success instead of defeat? And would not this enormously simplify the task of enforcement in the local community? In other words, the Government must bear responsibility for creating a situation in which general support of the law will naturally increase.

I am, therefore, personally opposed to any ‘liberalizing’ of the Volstead Act until an adequate attempt has been made to stop up the main illicit sources of supply. But if, when these rivers cease to flow, the demand for liquor continues so great as to promote the moonshine industry on a colossal scale, as is freely predicted, then our wet cities will remain wet until they have the will to be dry.

The proposal that the law should be modified to permit the sale of ‘light wines and beer’ should be viewed very critically. It is exceedingly plausible. The argument is that an inexpensive, standard, legal beverage of low alcoholic content will drive out of the market the hard liquors that now command a high price because the law has restricted the supply and surrounded the traffic with so great hazards. Theoretically this is correct. But there is no evidence that the light beverage will satisfy a well-developed appetite for alcohol. Canadian ‘fourpoint-four’ (which contains between two and three per cent of alcohol) has not been a commercial success. And, if the demand for hard liquor continues, what hope is there of preventing its illicit sale in the places which will be licensed to sell lighter drinks? The liquor traffic was ever a lawbreaker, and the plan proposed would presumably recruit its dispensers largely from the ranks of the bootleggers of to-day. It is not an encouraging prospect.

Much is said pro and con about the state of public opinion on the prohibition situation. Our report gave only a few indications, but they have been supported by the notable study since published by Collier’s Weekly. That study was carefully and conscientiously undertaken, and its result should be taken seriously. It indicated an overwhelming dissatisfaction with enforcement, and a widespread pessimism as to the enforcibility of the law. Nevertheless, no poll or canvass can be assumed to yield the same result as an election which comes at the end of several weeks of reflection and debate. The probabilities are that the country as a whole wants prohibition continued, but wants a more genuine article than it has yet been given.

The extraordinary treatment accorded our study by the press associations made possible a fresh appraisal of newspaper opinion. Five hundred and fifty editorials on the report were received and classified, of which 136 were expressly favorable to prohibition, 125 were hostile, and 289 were noncommittal. They were also classified as to their attitude toward the report: 340 were expressly favorable, 16 were hostile, and 194 were noncommittal. This would seem to indicate that the press is still open to conviction as to the outcome of national prohibition.

There were several minor findings of our study. No basis was uncovered for the charge that prohibition has increased drug addiction; in fact, it seems clear that it has had no effect either way upon the drug traffic. No support was given to the theory that prohibition has caused a moral breakdown among young people; rather, it appears that illicit drinking is one phase of a defection from conventional ideals and standards whose causes are difficult to probe but are certainly of complex origin. It is altogether likely that with the increased popular use of the automobile and the passing of chaperonage the hip flask would have come into the picture in any case in response to a demand for a sort of portable dispensary. The coming of prohibition has no doubt made it more of a toy than it would otherwise have been, and given it a preferred place in the hierarchy of illicit indulgences upon which our moral education has as yet made slight inroads.

Likewise, it was shown that the wholesale charge, now emanating from one side, now from the other, that all respect for law is being broken down by the want of observance of the prohibition laws rests upon a gratuitous assumption. Fortunately our attitudes toward law and government are, like our other attitudes, particular rather than general. We do not have one general attitude that we draw upon whenever a new law is passed; we tend to make up our minds about each law on its own merits. It is true there is a widespread feeling that the mere fact that a law is on the books makes it mandatory upon the individual, and many people are to-day observing the prohibition laws on that basis. But, by and large, we are coming to see that compliance with a statute must be secured by assent to that particular law on its own merits or there will be an increasing breakdown in its observance.

One finding of the study may be regarded as conclusive: the enactment of social legislation is never a substitute for social education. Whatever the result of the new enforcement crusade may be, — and there is much ground for hope that important progress will be made, — it is a safe prediction that the illicit liquor-traffic will be finally overcome only when and where education in temperate living strongly reënforces the arm of the law.