Prohibition's Foes: Still Teaching Lessons Today

Barely a century ago, the hatchet-wielding “temperance” fanatic Carrie Nation smashed bars and saloons in Kansas and Texas. Some of the targets of her rage posted signs in their establishments that read, “All Nations Welcome Except Carrie.”

Arrested at least 30 times for her self-described “hatchetations,” Nation died in 1911 at age 64. Less than a decade later, her “good intentions” were realized when the federal government attempted to accomplish with guns and police what Carrie had so eagerly pursued with a hatchet.

Carrie Nation was not a hero and is not the primary subject of this article. Years before Nation appeared on the scene, former president Rutherford B. Hayes wisely rejected her sentiments when he wrote about the temperance movement in an 1883 diary entry:

Personally I do not resort to force — not even the force of law — to advance moral reforms. I prefer education, argument, persuasion, and above all the influence of example — of fashion. Until these resources are exhausted I would not think of force.

So if not Carrie Nation, who is the real hero of this story? No one person, but many: all those Americans who opposed Prohibition and thereby paved the way for its repeal after almost 14 years of futility and violence. We have much to learn from them today.

Prohibition assumes everybody who touches the prohibited stuff deserves to be treated as a criminal, and that just isn’t so. 

It took a constitutional amendment (the 18th) and a law of Congress (the Volstead Act) to outlaw the “manufacture, sale, or transportation of intoxicating liquors” in January 1920 and another constitutional amendment (the 21st) to undo them in December 1933. In the intervening years, Americans paid an awful price for a fruitless effort to stamp out alcohol. No one disputes that some people will abuse just about anything, even the freedom of speech by printing a lie. But the answer to the sins of the irresponsible few isn’t to outlaw the private, personal, and peaceful choices of the many.

Historian Lisa Andersen writes,

People who could afford the high price of smuggled liquor flocked to speakeasies and gin joints.… Working-class consumption largely moved from saloons into the home. “Bathtub gin” and moonshine took the place of mass-produced liquor, and hosts might use additives to turn grape juice into wine for their guests. Americans who sought to remain in the liquor business found ways to redistill the alcohol in perfume, paint, and carpentry supplies.… Criminal organizations profited from Americans’ insatiable desire for liquor, and then defended those profits by murdering hundreds of their competitors and infiltrating legitimate businesses, labor unions, and government.

President Woodrow Wilson opposed Prohibition before it became law. He later defended his administration’s enforcement of it. He and his wife took their own stash of booze from the White House to their Washington residence when he left the presidency in March 1921. His successor, Warren G. Harding, brought his own large supply with him to the White House immediately after his inauguration.

Such double standards were widely practiced, prompting gangster Al Capone to famously snicker, “When I sell liquor, it’s called bootlegging; when my patrons serve it on Lake Shore Drive, it’s called hospitality.” Capone’s rise to the pinnacle of the crime world stemmed directly from Prohibition; he happily supplied the booze while the government pummeled his competition.

Economist Mark Thornton, in a 1991 policy analysis paper for the Cato Institute, summarized Prohibition’s effects on crime rates:

America had experienced a gradual decline in the rate of serious crimes over much of the 19th and early 20th centuries. That trend was unintentionally reversed by the efforts of the Prohibition movement…The homicide rate increased to 10 per 100,000 population during the 1920s, a 78 percent increase over the pre-Prohibition period…More crimes were committed because prohibition destroys legal jobs, creates black-market violence, diverts resources from enforcement of other laws, and greatly increases the prices people have to pay for the prohibited goods…Instead of emptying the prisons as its supporters had hoped it would, Prohibition quickly filled the prisons to capacity.

One of Prohibition’s more colorful dissenters was commentator H.L. Mencken, who wrote in 1925,

Five years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.

Mencken understood from the start that it wasn’t government’s function to make war on people over their personal, private, and peaceful choices. As long as we do no harm to the lives or property of others, each of us possesses an inherent, natural right to our own — and that includes our bodies. Prohibition assumes everybody who touches the prohibited stuff deserves to be treated as a criminal, and that just isn’t so. If you take a book and beat somebody over the head with it, you may rightfully be charged with assault; but if you do nothing more than read the text, even if it’s a book as offensive as The Communist Manifesto, only a fool or a tyrant would ban the book and throw you in prison.

Physicians all over America called for the repeal of Prohibition because it prevented them from legally prescribing medicinal liquors, including whiskey. Of course, brewers, distillers, and bar owners were active in the repeal effort, too. Millions of others opposed Prohibition for good reasons not related to their own bottom lines. Though evidence suggests the ban did cut alcohol consumption temporarily — we’ll never know by how much because legal bans drive so much of the prohibited behavior behind closed doors — the benefits of Prohibition were dwarfed by the harm it did. Those with the courage to say so and to work to change the law are the heroes in this otherwise sorry saga.

Women took lead roles in the crusade for repeal, as documented in Kenneth D. Rose’s 1996 book, American Women and the Repeal of Prohibition. One example was M. Louise Gross, who created the New York City–based Molly Pitcher Club in 1922 to campaign for repeal.

Another was Pauline Sabin, an influential Republican Party official, who founded the Women’s Organization for National Prohibition Reform. Sabin “found the hypocrisy of Prohibition intolerable,” according to one biographer, and “was repelled by politicians who voted dry and then turned up at her dinner table expecting a drink.”

My personal favorites among Prohibition’s foes were the many jurors who simply refused to convict defendants accused of buying, selling, or drinking illegal booze. They were exercising what legal scholars term the right of “jury nullification.” When jurors acquit an accused person they know is guilty of breaking the law because they object to the law itself, at least in that individual case they are “nullifying” it. Though controversial among members of the legal community, the practice commands considerable precedent in common law that goes back as far as the 13th century.

In their highly regarded and frequently referenced 1966 book, The American Jury, Harry Kalven Jr. and Hans Zeisel reported that the acquittal rate for liquor violations for 8,078 trials in the federal system from 1929 to 1930 was 26 percent. In the Second District of New York it was an astonishing 60 percent.

“The Prohibition era,” Kalven and Zeisel wrote, “provided the most intense example of jury revolt in recent history.” They quote a judge’s note, “Difficult generally to convict bootleggers.” Another judge wrote, “A very great number of persons maintain the belief that the law against selling alcoholic drinks should not be enforced, and it is extremely difficult to get a conviction no matter how strong the evidence may be.”

When bad law conflicts with good conscience, nullification is an honorable option.

The typical nullification case did not involve an accused abusing alcohol and then, under the influence, doing harm to another person or his property. Jurors almost always voted to acquit in cases where there were no victims or in cases where, if there was a victim, it was the accused himself through his own voluntary choice. Those jurors were, in a way, echoing the sentiments of Henry David Thoreau: “If … the machine of government is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.”

Kirsten Tynan directs the Fully Informed Jury Association (FIJA), an organization formed to educate Americans about the jury nullification concept. She recently brought to my attention a January 1929 New York Times article headlined, “Jurors Go on Trial, Drank Up Evidence.” The story revealed that the prosecution’s main exhibit in its case against one George Beven, accused of an alcohol violation, was a pint of liquor. Left alone with the pint for three hours during deliberation, the jurors “sampled” the evidence until it was gone, claiming they did so to determine if it was in fact alcoholic. They found Bevan not guilty.

In honoring this heroic resistance, are we endorsing lawlessness?

In the words of the famous lawyer Clarence Darrow, “As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.”

When bad law conflicts with good conscience, nullification is an honorable option.

After 14 years of bad law and its tragedies, Prohibition was repealed on December 5, 1933 — just in time for some legal Christmas cheer. Newly elected president Franklin Roosevelt had pushed for repeal mainly to shore up declining federal revenues by taxing legal alcohol. The real heroes of the repeal effort were the men and women who wrote and spoke against Prohibition, who formed organizations to educate for personal choice, and who refused to enforce the law even when judges never advised them they had that right.

What does all this imply about the wisdom of today’s laws against the possession, use, or sale of the most ubiquitous illegal substance, marijuana, which results in far fewer deaths each year than swimming pool accidents do?

The evidence is stark. Our marijuana laws are a colossal and expensive failure. Practically anybody who wants the stuff can get it, easily. Ironically, those who have the toughest time securing it are those who would benefit from its pain-reducing qualities but are averse to breaking the law. The war against it is no more effective or desirable than was alcohol Prohibition.

Our marijuana laws are a colossal and expensive failure.

Thanks largely to marijuana prohibition, we prop up Capone–like drug cartels with billions in artificial profits. The associated violence on both sides of the border with Mexico kills and maims thousands more in any one year than marijuana has in the last hundred years. More than 40,000 people are languishing in US jails and prisons on marijuana charges — virtually all nonviolent offenders — at an average cost to taxpayers of at least $20,000 per inmate. What do we have to show for it all? Mostly pain, sorrow, and billions of dollars down the drain — not to mention the liberties we’ve lost because of property forfeitures and other intrusive police powers. Someday, thanks to those like FIJA’s Kirsten Tynan, who are working to enlighten us, problems of substance abuse and addiction will be widely recognized not as criminal issues but as personal and medical ones.

In recent years, juries have nullified in marijuana cases in states as diverse as New Jersey, Montana, and New Hampshire. Two years ago, Reason TV interviewed a medical marijuana patient who escaped conviction and up to 10 years in prison through jury nullification. The 10-minute interview is worth watching:

The jurors who freed him from a life ruined by jail time for a victimless crime are real heroes. So are the voters who’ve supported legalization at the polls. And so are the many other men, women, and organizations speaking out against the insanity of present-day marijuana laws.

I salute the heroic foes of both Prohibition past and prohibitions present, and I’m grateful I can raise a glass of beer or wine in honor of them without fear of jail time.

For further information, see:

• Donald J. Boudreaux’s “Alcohol, Prohibition and the Revenuers”
• Douglas Rogers on “The Fiasco of Prohibition”
• Ken Burns’s PBS documentary Prohibition
• Edward Behr’s book Prohibition: Thirteen Years That Changed America
• Daniel Okrent’s book Last Call: The Rise and Fall of Prohibition
• Clay S. Conrad’s book Jury Nullification: The Evolution of a Doctrine
• Bedford, NH, Patch article, “Should Religious or Medicinal Marijuana Users Be Prosecuted?”
• Reason TV’s interview, “Jury Nullification vs. the Drug War: NJ Weedman on His Unlikely Marijuana Acquittal”