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Marihuana, A Signal of Misunderstanding - Table of Contents

National Commission on Marihuana and Drug Abuse

History of Alcohol Prohibition*

*This section is based in large part on a paper prepared for the Commission by Jane Lang McGrew, an attorney from Washington, D.C.

PROHIBITION IN PERSPECTIVE

During 13 years, what did Prohibition accomplish? There is no single compilation of Prohibition statistics which would enable us to determine the degree of success which Prohibition enjoyed during its lifetime.

In discussing the relative successes and failures of Prohibition, most observers conclude that the undertaking failed. "Prohibition destroyed the manufacturing and distributive agencies through which the demand for liquor had been legally supplied. But the demand remained" (Hu, 1950: 51).

In its Report on the Enforcement of the Prohibition Laws of the United States, the Wickersham Commission concluded that the country had prohibition in law but not in fact. They reported:

There was general prevalence of drinking in homes, clubs and hotels.... Throughout the country people of wealth, businessmen and professional men and their families, and the higher paid workingmen and their families, are drinking in large numbers in open flouting of the law. And neither Congress nor the states set up adequate machinery or appropriated sufficient funds for the enforcement of the prohibitory legislation. Federal and state legislation, as a matter of fact, strove to satisfy so that, as it was aptly said, the drys had their prohibition law and the wets had their liquor (Hu, 1950: 52).

Although some view the theory of prohibition as reasonable, it is generally conceded that the realities of manufacture and distribution make it unworkable, for in one form or another, alcohol can be easily produced by farmers, high school chemistry students, and ordinary citizens.

Prohibition has been attempted many times in various parts of the world; except for some Moslem areas, attempted legislative controls have not proven adequate. In spite of many sincere and determined efforts, no country in Europe or the Americas has yet succeeded in eliminating the use of alcohol by society by legislative fiat (H.E.W., 1968: 41).

Those who had been accustomed to using alcoholic beverages sought other sources of supply "in disregard of the legislative mandate. In the presence of high pecuniary returns there [was] a strong tendency for supply to meet demand in spite of prohibition" (Hu, 1950: 51).

Consumption. Although it is impossible to make an accurate determination of the consumption of alcoholic beverages under Prohibition-since there are no statistics compiled regarding the output and sale of the outlaw industry-estimates have been made by those examining the economic results of Prohibition as well as by the Bureau of Prohibition of the U.S. Department of Justice. The Bureau placed the consumption of alcoholic beverages at 73,831,172 gallons, or 0.6 gallon per capita in fiscal year 1930 as contrasted with 166,983,681 gallons or 1.7 gallons per capita in 1914.

In terms of pure alcohol, the Bureau concluded that per capita consumption in 1930 was 35% of the 1914 rate of legal consumption. These estimates have been criticized as being far too low (Tillitt, 1932: 35).

The figures published by the Department of Commerce in the Statistical Abstract of the United States reflect a different picture. The average annual per capita consumption of hard liquor from 1910-1914, inclusive, was 1.46 proof gallons. "This 5-year period was before the rise of abnormal conditions coincident to the World War and may be taken as fairly indicative of the normal rate of drinking that prevailed in the Pre-Prohibition era" (Rosenbloom, 1935: 51).

The per capita rate for the Prohibition years is computed to be 1.63 proof gallons. This is 11.64% higher than the Pre-Prohibition rate (Tillitt, 1932: 35). Based on these figures one observer concluded: "And so the drinking which was, in theory, to have been decreased to the vanishing point by Prohibition has, in fact, increased" (Tillitt, 1932: 36).

Others disagree with the implications of these unverified statistics noting that persons of limited means, formerly unable to patronize the expensive speakeasies, once again had cheap access to alcohol following repeal and thereby increased consumption (Harrison & Laine, 1936: 1).

Popular opinion is equally inconclusive; a survey conducted by the American Institute of Public Opinion in 1936 asked whether conditions (drinking customs, consumption, etc.) were better worse or without significant change since Repeal 36% indicated a worsening and 31% could see no appreciable change (Harrison & Laine, 1936: 2). Perhaps indicative of a gradual process of adjustment, however, the results of later Gallup polls suggest a gradual decline in the use of alcohol. Of a national sample, 67% indicated they used alcohol in 1945, in contrast to 60% in 1950 and 55% in 1958 (Gusfield, 1963: 135).

Alcoholic Psychoses. There was a notable decrease in alcoholic psychoses and in deaths due to alcoholism immediately preceding the enactment of Prohibition and a gradual increase in alcoholic psychosis and in deaths from alcoholism in the general population since 1920.

"These facts appear to indicate that since 1920, Prohibition [was] increasingly impotent as a means of preventing excessive use of alcohol to an extent productive of serious mental disorders and untimely death. 1920 marks the end of the decline and the beginning of the rise in the trends of alcoholic mental diseases and of deaths from alcoholism in the general population" (Brown, 1932: 88).

The increase in mental disorders and deaths from alcoholism after 1920, however, also coincides with the heavy consumption period-early 1900's-which would have resulted in an increase in alcoholism some years later.

The following table reflects the decrease prior to 1920 and the subsequent gradual increase in percentage of alcoholic psychosis among new admissions to 56 hospitals in 25 states as well as among admissions to New York civil state hospitals (Brown, 1932: 76-77; Malzburg, 1949: 294) :

56 Hospitals

Year All new admissions New admissions with alcoholic psychoses NY State - civil hospital percent admission with alcoholic psychoses.
    Number Percent  
1910 17,439 1,486 8.5 ...
1911 17,299 1,366 7.9
1912 17,570 1,567 8.9 ...
1913 17,525 1,633 9.3 9.3
1914 19,134 1,573 8.2 7.4
1915 18,875 1,331 7.1 5.7
1916 17,929 1,370 7.6 6.1
1917 20,041 1,576 7.9 8.2
1918 19,741 1,021 5.2 5.2
1919 19,737 841 4.3 4.1
1920 19,579 485 2.5 2.0
1921 20,368 567 2.8 2.8
1922 20,741 798 3.8 3.2
1923 20,316 861 4.2 4.0
1924 19,818 896 4.9 5.4
1925 20,857 1,017 4. 9 5.8
1926 20,911 997 4.8 5.9
1927 21,982 1,268 5.8 7.0
1928 23,293 1,257 5.4 6.0
1929 23,242 1,380 5.9 6.2
1930 24,100 1,251 5.2 6.0

Deaths from Alcoholism. In New York City, from 1900 through 1909, there was an average of 526 deaths annually attributable to alcoholism. From 1910 through 1917, the average number was 619. It plummeted to 183 for the years 1918 through 1922. Thereafter, the figure rose, averaging a new high of 639 for the years 1923 through 1927 (Rice, ed., 1930: 122).

Total deaths from alcoholism in the United States show a comparable trend, with the gradual increase resuming somewhat earlier, about 1922 (Brown, 1932: 61, 77; Feldman, 1927: 397; U.S. Department of Commerce, 1924: 55).

Year Deaths from all causes rate per 100,000 Deaths from alcoholism rate per 100,000
1910 1,496.1 5.4
1911 1,418.1 4.9
1912 1,388.8 5.3
1913 1,409.6 5.9
1914 1,364.6 4.9
1915 1,355.0 4.4
1916 1,404.3 5.8
1917 1,425.5 5.2
1918 1,809.1 2.7
1919 1,287.4 1.6
1920 1,306.0 1.0
1921 1,163.9 1.8
1922 1,181.7 2.6
1923 1,230.1 3.2
1924 1,183.5 3.2
1925 1,182.3 3.6
1926 1,222.7 3.9
1927 1,141.9 4.0
1928 1,204.1 4.0
1929 1,192.3 3.7

The highest death rates from alcoholism occurred during the decade prior to Prohibition as did the highest death rates from cirrhosis of the liver. These statistics should be qualified by the observations of Dr. Charles Morris, Chief Medical Examiner for New York City: "In making out death certificates (which are basic to Census Reports) private or family physicians commonly avoid entry of alcoholism as a cause of death whenever possible. This practice was more prevalent under the National Dry Law than it was in preprohibition time" (Tillitt, 1932: 114-115).

Even if reliable, per se, such statistics may be unrelated to the consumption of alcoholic beverages in any given year. Another writer of this period noted: "The relation of fatal alcoholic diseases to consumption of alcohol must be one extending over a long period of years and the actual duration of the critical period can hardly be estimated" (Jellinek, 1942: 48-1). According to one sociologist, rates of alcoholism and related mental and physical diseases reflect past drinking habits, developed ten to 15 years earlier (Gusfield, 1963: 119).

A shorter "lead time" is suggested by a mental hygiene statistician who attributes the temporary reduction in alcoholic psychoses "to the legal restriction of the sale and use of alcoholic beverages, made effective by the support of public opinion which during the war period had discountenanced self-indulgence, of all sorts" (Brown, 1932: 88). He adds, however, that the notable increase in alcoholic psychoses and deaths from alcoholism towards the end of the prohibition era (1927-1932) indicated that:

... since 1920, prohibition has become increasingly impotent as a means of preventing excessive use of alcohol to an extent productive of serious mental disorders and untimely deaths (Brown, 1932: 88).

The highly limited statistical label of death from alcoholism has been noted elsewhere:

The trend of death from alcoholism reflects hardly anything else than progress in the treatment of the so-called diseases of chronic alcoholism. Nevertheless, statistics of death from alcoholism have been used by both Drys and Wets to prove that Prohibition or repeal has greatly improved the rate of death from alcoholism. . . . Death from alcoholism is simply not an index of the prevalence of inebriety. Death from alcoholism could fall to zero in response to medical progress, while at the same time the rate of inebriety might rise many fold (Jellinek, 1947: 39).

Arrests Arrests for drunkenness also provide a source of information about the extent of drinking in the United States. It must be noted, however, that statistics of this sort vary with local police policies. For example, during a six-year period in the 1930's, the arrests for drunkenness were from 14 to 31 times higher in Philadelphia than in New York (Kolb, 1941: 608).

Nevertheless, gross statistics drawn from 383 cities indicate that arrests for drunkenness per 10,000 population reached a high of 192 in 1916 and fell to 71 in 1920. From this level, they rose steadily again to reach 157 in 1928 (Warburton, 1932: 102). Of course, arrests prior to Prohibition may not bear the same relation to the use of alcohol as they did subsequently, Warburton theorizes:

. . . [U]nder Prohibition, especially during the early years, police were more strict in making arrests, and . . . a larger proportion than formerly of persons appearing on the streets under the influence of liquor are arrested. Also, since the sale of liquor is illegal and cannot be obtained in public saloons, and when the police are more strict in arresting intoxicated persons, it is reasonable to suppose that drinking is less public and that fewer drunken persons appear on the streets relative to the quantity of liquor consumed (Warburton, 1932: 103).

Nevertheless, the cyclical trend suggested by these figures coincides with statistics on alcoholism (Brown, 1932: 61, 71, 77). Whatever their independent validity, however, they correlate earth the theory of one author that:

[T] he 18th Amendment could not have been passed without the support of the psychologically tolerant, made temporarily intolerant by the stress of war. But when the moderates deserted the drys in the time of peace, the hard core of the movement was revealed (Sinclair, 1962: 23--24).

Without the support of the moderates, the author theorizes, Prohibition was to become itself a symbol of excess, unsupported by the vast majority of the population.

Outcome. What, then, did Prohibition accomplish? To a great extent it eliminated the saloon from American life. While bars and taverns reopened joyfully following repeal, they ceased to be the centers of systematic political corruption and debauchery which they had once been. Part of this may be attributable to the greater sophistication of the electorate and politics generally. Part, no doubt, is owing to the fact that women were welcome as customers in the new cocktail lounges, having shown themselves to be eager patrons of the speakeasies.

And finally, the change in the character of the saloon was effected by public determination that it should be changed. This attitude was expressed in the post-repeal statutes concerned with the physical appearance of the saloon and the character of persons authorized to operate them.

Prohibition did make the nation conscious that corruption of the law and of the populace may be the consequence of a law which is not reflective of the morals and mores of the time. It played out some of the deepest social class resentments, culminating in the realization that the behavioral standards of some could not be impressed upon others. It demonstrated that the fervor of war and the cult of patriotism may be abused-and abuse the country in return.

Repeal reimposed the burden of regulation upon the states. They were required to develop a system of control directed at the particular objectives they wished to achieve. The post-repeal era was to prove an exercise not only in states' rights but in states' responsibilities.

1933-1971: AFTER THE DELUGE

On December 4, 1933, the day before final ratification of the repeal amendment, the President established the Federal Alcohol Control Administration, pursuant to Executive Order No. 6474. FACA was to have the power to grant or revoke permits to engage in the alcoholic beverage industry-not the brewing industry-as well as the power to control plant capacity and production; it was also to engage in consumer protection through regulations designed to prevent misbranding and false advertising of alcoholic beverages. In addition, FACA prohibited the ownership of retail outlets by manufacturers and wholesalers (Harrison & Laine, 1936: 24-29).

This scheme fell under the Schecter Poultry decision by the Supreme Court. The Treasury, Federal Trade, Commission and Food and Drug Administration then moved in. A new alcohol control agency was proposed, leading to a dispute as to whether it should be independent or part of the Treasury.

Joseph H. Choate, Jr., first head of the FACA, testified that:

The Treasury has not been an organization whose duty it was to study and understand the liquor business, the interest of the public in that business, or the method by which that business ought to be carried on in order to subserve the interests of both the public and state governments. It has been a creature of one idea, that one idea being, quite properly, to get revenue and get it as fast and as copiously as it could (Harrison & Laine, 1936: 33).

The Department of the Treasury agreed with Choate's analysis.

Nevertheless, this testimony was disregarded and the Federal Alcohol Administration was created as a division of Treasury in 1935. This arrangement was superseded in 1936 when the Liquor Tax Administration Act established FACA as an independent agency of the government. Soon thereafter it was reorganized, once again as an arm of the Department of Treasury, and even its separate identity was abolished as of June 30, 1940. Today, the Treasury retains full authority to administer all federal liquor laws.

The current federal laws regulating trade in intoxicating beverages may be classified in the following categories:

(1) Revenue: Taxes are imposed on rectifiers, brewers, manufacturers of stills, dealers; wholesale and retail stamps are required on distilled spirits (26 USC, 1971a).

(2) Criminal Penalties: Criminal penalties are provided for unauthorized production, sale or possession, transportation into states prohibiting sale, C.O.D. shipments and unlabeled shipments (26 USC, 1971b; 18 USC, 1971).

(3) Interstate Transportation: Interstate shipments of alcoholic beverages are subject to the laws of the receiving state (27 USC, 1971a).

(4) Permits: Importers, manufacturers and sellers of intoxicating beverages must have permits (27 USC, 1971b).

(5) Unfair Practices: Exclusive sales arrangements, tying, bribery and false advertising or labeling are prohibited (27 USC, 1971b).

The intent of the Federal Government to reserve all decisions regarding regulation of consumption is quite clear from federal statutes presently in force. The states have reacted with a variety of regulatory schemes controlling to varying degrees the seller, the buyer, the place, time and opportunity for sale and, through revenue measures, the cost.

In 18 states, the state store or state monopoly system has entirely displaced the private wholesale or retail sale of intoxicating beverages. Other states permit the sale of liquor, wine and beer through private, licensed outlets.

The license system may be implemented by different, means. Administration may be solely by the state, or control may be shared by the counties or municipalities.

Local control may be exercised to a greater or lesser degree. For example, in the 1930's, immediately after repeal, Massachusetts and New Mexico permitted local boards to grant retail licenses only after investigation and approval of applicants by the state board. During the same period, other states, predominantly in the South, gave local authorities supplemental powers to issue licenses while requiring concurrent state licenses as well.

In some jurisdictions, the local license had to be obtained first, and the state license could be granted thereafter. In Illinois, however, the state commission's power was curtailed by requiring that a state license be granted once the local license was secured. And although the state was given the power to revoke its license, it was given no power to inspect places of sale to determine grounds for revocation (Harrison & Laine, 1936: 50-53).

The license system has been suspect by many wets as well as drys because of the opportunities it may afford for political abuse. On the other hand, there is substantial opinion which holds direct participation in the sale of liquor in contempt. As to the relative efficacy of each, there are no reliable means of making a judgment. Each apparently depends on the integrity and capacity of the individuals charged with the job of enforcement and oversight.

Superimposed on the basic system of regulating the sale of liquor are other sumptuary laws which are directed at the purchaser. Sales are not permitted to minors or intoxicated persons. Credit is often prohibited on liquor sales as well. Criminal penalties may be imposed for driving under the influence of alcohol as well as for drunken behavior.

The sale of liquor by the drink is permitted in most states, but some still require that it be sold in packaged form only, reflecting the continuing fear of the resurrection of the saloon. In many states Sunday closing laws are enforced, and mandatory closing times are imposed upon bars and package stores alike. Sales are prohibited almost uniformly on Election Day, at least during polling hours, and, in many places, on Thanksgiving, Memorial Day, Christmas and other holidays.

Local option is still granted in most states, in voting units ranging from the plantation to the city or county. Of the monopoly or control states, only Utah and Wyoming fail to make provision for local option at all. Wyoming maintains a state monopoly at the wholesale level only. Private retailer sellers are licensed.

In the remaining monopoly states, it is often possible for towns within a wet county to go dry, and sometimes vice versa. Of the 33 license states, only 10 (including the District of Columbia) do not permit local option at any level.

Notwithstanding the various patterns of regulation, Senator Arthur Capper's words of the 1930's still seem to be correct:

We can repeal prohibition, but we cannot repeal the liquor problem (Peterson, 1969: 126).

Neither the states nor the population have yet come to grips with the problems of alcoholism and alcohol abuse. Both the monopoly system and the license system are directed at other concerns. They, no more than Prohibition, have been able to control or even alleviate the very real and dire consequences of alcohol use by society.



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