Chapter 16
IN AN ATTEMPT to memorize poetry,” Irving Fisher wrote in 1926, “Professor Vogt of the University of Christiania found that on days when he drank one and one-half to three glasses of beer it took him 18 per cent longer to learn the lines.” To an extreme dry like Fisher—which is to say, to an extreme dry who also happened to be one of America’s foremost economists—this was a “fact” to fall in love with. Fisher wasn’t going to miss the chance to attribute the strength of the U.S. economy to computations made by Professor Vogt during his attempt to master the Odyssey, in Norwegian, while a little bit in the tank. He had made a similar calculation in 1919, when he extrapolated from a study showing, he said, that “two to four glasses of beer will reduce the output of typesetters by 8 per cent.” From this he determined that withholding those beers from those typesetters, and from everyone else in the American labor force, “will add to the national output of the U.S. between 7½ to 15 billion dollars’ worth of product, every year.”
Fisher loved to express complexities with numbers, but computation wasn’t his only work for the dry cause. He was the drys’ leading expert on virtually any subject, before virtually any audience.* He declared himself dedicated to “the abolition of war, disease, degeneracy, and instability of money,” and considered alcoholic beverages a contributor to each of these plagues. He gave speeches, testified before Congress, and wrote advertisements, pamphlets, and books about the virtues of the dry laws; in 1928 one of the latter, Prohibition at Its Worst, was turned into a movie with the counterintuitive title (for modern viewers) Deliverance. In the years after ratification, Fisher seemed to find evidence for the wonders of Prohibition behind every statistic he encountered—for instance, the discovery, in 1924, that arrests in New York City for the use of “foul language” had dropped 20 percent since pre-Volstead levels. He was not inclined to consider other causes—like, possibly, a wider acceptance of profanity in the Jazz Age city—when he could grab a number and pronounce it evidence. When Fisher determined that a single drink reduced efficiency by 2 percent, he said that this translated to more than a billion dollars of GNP. Dartmouth professor Herman Feldman, bemused by the unlikely exactitude of Fisher’s calculations, said a 2 percent loss in efficiency could instead be the result of “a mere depressing thought.”
Fisher was not alone in his attempts to measure the effects of Prohibition with numbers of dubious precision and indeterminate relevance. From Washington came the pronouncements of Prohibition Commissioner Roy Haynes, as jolly as ever: five times as many new houses were built in 1922 as in the last entirely wet year; three thousand people were joining churches every day; in some cities drunkenness among women was down 80 percent. Other dry boosters credited Prohibition for empty prison cells, longer life expectancy, and increased savings rates, not to mention the growing popularity of bowling, which “undoubtedly absorbs not only some of the time but some of the money that was formerly spent on drink.” Even an increase in gambling reflected well on Prohibition: criminologist Winthrop D. Lane attributed the gambling spike to “the higher wages earned by boys and young men” after the country went dry.
Dry numerologists might have learned their tricks from the wets. Before the Eighteenth Amendment was enacted, the United States Brewers’ Association had been twisting statistics for years. The brewers had smugly noted that per capita savings were lower in states with dry laws, a finding that ignored the obvious disparity in wealth between the wet states of the Northeast and the dry ones of the South and West. The USBA went so far as to argue that the low birth rates in dry states “show conclusively how prohibition lowers the standard of virility.” Roy Haynes, observing from the other end of the telescope, claimed Prohibition was responsible for a sharp decline in “arrests for offenses against chastity.”
The numbers became a jump ball, each side trying to tip them toward its own goal. Arrest rates for drunkenness? If they were up, wets attributed them to increased drinking, drys to more effective enforcement. Frequency of alcoholism? When Dow Jones president Clarence W. Barron, a wet, told his friend J. H. Kellogg that Bellevue Hospital in New York was treating more alcoholics than it had before Prohibition, the dry Dr. Kellogg divined the reason: “because practically all the other alcoholic wards in New York have been closed and so [Bellevue] gets them all.”
Wolcott Gibbs would have had a different take on Barron’s news. The satirist invented the “president of the American Institute for the Dissemination of Trivia” to pass judgment on such data: “These figures can be interpreted in only two ways,” Gibbs’s man said. “Either people are drinking a lot more, or else they don’t hold it too good.” In fact, one can examine every uninflected statistic that emerged from the 1920s—cirrhosis rates, alcohol-related deaths, incidence of alcoholic psychosis—and it’s inescapably clear that Americans as a whole consumed less alcohol during Prohibition than before. The outstanding work of economists Jeffrey A. Miron and Jeffrey Zwiebel in the 1980s and 1990s established that “alcohol consumption fell sharply at the beginning of Prohibition, to approximately 30 percent of its pre-Prohibition level,” and by the time of Repeal had risen “to about 60–70 percent of its pre-Prohibition level.” Tax data collected immediately before and after Prohibition—a precise measurement of alcohol legally purchased—confirms this appraisal.
But national numbers obscure individual behavior. Though many millions clearly lived by the law, those who did not drank more than their share. What Irving Fisher, Morris Sheppard, Ernest H. Cherrington, and other intellectually capable and intellectually honest drys didn’t understand was how much those who drank wanted to drink, either out of biological necessity, psychological weakness, or free choice. Had they paid attention to the post-ratification experience of the brewing industry, the drys might have recognized the limits of law’s ability to defeat appetite.
As in most brewery-related enterprises, Anheuser-Busch had led the way. The technique of removing the alcohol from beer at the conclusion of the brewing process was put to profitable use in 1916 when August A. Busch introduced a “cereal beverage” called Bevo (the name was derived from pivo, the Bohemian word for “beer”). Bevo never made much of an impact in the Deep South, where several states banned its distribution. Alabama’s statute, for example, prohibited the sale of anything that “tastes like, foams like, smells like or looks like beer,” and even proscribed containers that looked like beer bottles, irrespective of what was inside or on the label. But as state Prohibition laws spread through the rest of the country, so did the sales of near beer. By 1918 Anheuser-Busch was producing five million cases a year, and the company built the world’s largest bottling facility, at a cost of $10 million, just for Bevo.
By the time national Prohibition arrived, other brewers were jumping into the business. Stroh’s Temperance Beer showed up in Detroit. In Brooklyn, Piel’s offered three new de-alcoholized beers (Pilsner Light, Dortmünder Golden, and Münchener Dark), advertising them as “new brews with the real pre-war taste.” Other brewers aped Bevo in their branding: Pabst created Pablo, Miller weighed in with Vivo, and Schlitz called its entry Famo. The Frankenmuth Brewery in Michigan tried Franko. None could use the vernacular term “near beer,” for the Volstead Act expressly forbade the use of the word “beer” on labels or in advertising. The Dick Brothers brewery, in Quincy, Illinois, hurdled this roadblock by naming their offering Nearo. No one thought the Dicks were honoring a Roman emperor.
But none of these companies was prepared for the shock that came after barely six months of constitutional Prohibition, when the market for near beer suddenly flattened, then nose-dived. In the beer-loving cities of the East and Midwest, demand for punchless brews evaporated. By 1923, wrote Ronald J. Plavchan in his authoritative history of Anheuser-Busch, “Bevo sales were almost negligible.” The same year, a New Jersey dry named George S. Hobart stumbled across the reason for the collapse. Hobart’s local brand, Feigenspan’s, was insisting in its advertising that its near beer was “as mellow and tasty as ever,” and Anheuser-Busch was claiming, “Same old process. Same old flavor. Same old value.” If near beer is just as good as the real thing, Hobart asked ingenuously, then why had the brewers ever bothered to make the real thing in the first place?
It was a question only a nondrinker could have raised. George Hobart meant to demonstrate that the brewers hadn’t needed alcohol in their beers after all. Considering the advertising rather than what was actually in the bottle or the barrel, he of course established precisely the opposite. A nation that had consumed an annual twenty gallons of beer per person as late as 1914 was indifferent to near beer because “mellow and tasty” were incidental virtues. Beer drinkers wanted alcohol.
Not that this ended up bothering the brewers who had been engaged in the expensive process of de-alcoholizing their Bevos and Famos and Nearos. In no time they turned to a new item that kept the doors of hundreds of breweries open during Prohibition. The wondrous product that put the alcohol back in the beer and the brewers back in the chips was malt syrup, also known as malt extract. A more accurate name would have been “beer starter.” With the addition of water, yeast, and time, the syrup blossomed into real, foamy, alcohol-rich beer. And, purchased in its packaged form, pre-fermentation, it was every bit as legal as the grapes that went into homemade wine. For the brewers it was in one respect even better than selling beer, since it enabled them, like the grape growers, to move their merchandise without having to go through the trouble of fermenting and bottling it. “A product that will employ our 1,000,000 bushels of grain tanks is not to be lightly ignored,” said August A. “Gussie” Busch Jr., the general superintendent of his father’s brewery.
Until they found salvation in malt syrup, brewers had been struggling to reconfigure their facilities for the manufacture of apple butter, cider vinegar, processed livestock feed, or ice cream. For a business that had always been dependent on refrigeration, ice cream made a lot of sense, and Stroh’s, among others, stayed in that business for decades after Repeal.* But to the profit-minded former brewer, malt syrup could make ice cream seem about as appealing as turnips. Grocery stores stacked the syrup cans high on their shelves, and thousands of “malt shops” offered filters, bottles, bottle stoppers, yeast, and the syrup itself. Pabst tweaked its famous Blue Ribbon trademark for the new business, offering Pabst Blue Label syrup as well as a premium brand called Pabst Black Label. Anheuser-Busch was more direct, slapping the Budweiser name and logo on its syrup products and on Budweiser Yeast to boot. Soon there were two malt syrup trade associations, a malt syrup trade magazine, and that surest sign of success, an agitated Wayne B. Wheeler, who in 1925 asked one of his friends in Congress if “the time is ripe to prohibit the sale and distribution of these malt sirups and malt supplies.”
It wasn’t, nor would it ever be. Like the great California Grape Rush, the malt syrup boom could not be quelled. In 1926, five years after the reliably oblivious Roy Haynes had declared that “the home brew fad is taking its final gasp,” Anheuser-Busch was selling more than six million pounds of malt syrup annually, a level the company would maintain until Prohibition’s end despite the explosive growth of large-scale, mob-controlled brewery operations in some cities in the mid- to late twenties. “If you really want to know,” Gussie Busch told an interviewer decades later, “we ended up as the biggest bootlegging supply house in the United States.”
DRYS DIDN’T UNDERSTAND DRINKERS, in scores of different ways. Bootleggers and speakeasy operators understood them in the one truly important way: drinkers were customers, and had to be treated as such. Whether you were Captain John Simms of Yarmouth, Nova Scotia, who delivered directly to private clients in Greenwich, Connecticut, or the “small pint men” of Athens, Georgia, who banded together to defend their contribution to the community in the pages of the local paper, you recognized that this was a service industry. “A bootlegger is making his money as honest as some of these nice honest-to-goodness people,” the Athens group wrote in a letter provoked by threats from the city’s mayor. The most accurate summary of this dynamic—“I make my money by supplying a public demand”—was attributed to a young Chicago go-getter named Alphonse Capone.
Had the drys comprehended the fundamental desires of the drinking public, they might have taken a different approach to their presumptive stewardship of the era they had created. Both Richmond Hobson, the highest-paid speaker on the ASL roster, and Ernest H. Cherrington, the league’s chief publicist, tried to argue that education was more important than enforcement in the drive to rid America of alcohol—“not by the next general election,” Cherrington said, “but by the next generation.” But inside the ASL, Hobson was considered a crank and Cherrington could be dismissed as a man of words, not action. The dry movement continued to be dominated by those who demanded action and were able to provoke it.
It was as if the ASL zealots and their sympathizers elsewhere in the movement had come to believe that enforcement of the dry laws was more important than their effectiveness. They were like generals in later, bloodier wars who thought success or failure could be calibrated by body counts. In this war, they believed arrest totals were the paramount goal—both for the aggregated numbers that could be used to excite the faithful and for the discomfort and inconvenience (it was rarely more than that) suffered by the booze purveyors and their customers. As long as bartenders and bootleggers were harassed and punished, it almost didn’t matter if they stopped their bartending and their bootlegging. The mania for impressive statistics—numbers of arrests made, for instance—encouraged the Prohibition Bureau to spend its energy pursuing two hundred people with a pint each rather than chasing down a single big-time mobster who was selling his goods to two hundred speakeasies.
In much of the nation harassment, which was easy, triumphed over punishment, which was difficult. One of the nobler aspects of the Volstead Act was its guarantee of the right to a jury trial for anyone charged with a violation. It was a requirement, it soon turned out, that the legal system was incapable of handling. In New York the first four thousand arrests under the Mullan-Gage law (the state version of the Volstead Act that Al Smith soon torpedoed) resulted in fewer than five hundred indictments, which led in turn to only six convictions and not even one jail sentence. Mabel Willebrandt acknowledged that “juries will not convict if the punishment does not fit the crime,” and she was proven right in city after city, as juries effectively nullified the law because they didn’t think any punishment at all was appropriate for breaking the liquor laws. After Smedley Butler was fired as director of public safety in Philadelphia, he offered a statistic that was simultaneously a boast and an admission of defeat: in two years, his police force had made 227,000 liquor violation arrests. To Old Gimlet Eye, this indicated that his men had nabbed 15 percent of the city’s population; to anyone else, it indicated that they had arrested the same people over and over and over again. And again.
No one better understood the causes and consequences of this phenomenon, or did more to expose it, than Emory Buckner, who was appointed U.S. attorney for the Southern District of New York in 1925. Few career paths were less likely than Buckner’s. Born the son of an impoverished Methodist minister in Pottawattamie County, Iowa, as a youth he studied shorthand, eventually putting in three years as a court stenographer in the Oklahoma Territory. But at twenty-three Buckner decided to enroll at the University of Nebraska, where his academic brilliance and engaging manner won the attention of Roscoe Pound, dean of Nebraska’s law school. Convinced that Buckner deserved exposure to a wider world, he wrote some letters, raised some money, and dispatched his twenty-seven-year-old protégé to Harvard Law School, tuition and some expenses paid.* Pound’s instincts were correct: even though Buckner had to work part time as a stenographer to support his young family, in Cambridge his life was broadened by the sort of people he never would have met in Nebraska. Among his closest friends at Harvard, and after, were Elihu Root Jr., who would become Buckner’s law partner, and Felix Frankfurter, who would become a Supreme Court justice. Among the clients of his stenography service was Henry James.
Graduating third in a class of 190, Buckner moved to New York. He was as successful there as he had been in Cambridge, and by the early 1920s had become one of the city’s most admired and most prosperous lawyers. In March 1925, Harlan Fiske Stone, running a Justice Department that was both tainted by the lingering reek of the Harding administration and embarrassed by New York’s epic lawlessness, asked Buckner to clean things up. “If I am licked,” Buckner wrote to his law partners upon accepting the appointment, “. . . I will have the satisfaction of knowing that I was licked by things from the outside and by nothing inside of myself.”
Wet in his life and his politics, Buckner swore off his nightly brandy and soda for the duration of his tenure. Yet it would have been understandable if he had been driven back to drink by the corruption, inefficiency, squalor, and rampant injustice he encountered when he took office. “I found that the great United States Court in the Southern District of New York had degenerated,” he said. “Not into a police court . . . but into whatever is in the subcellar under a police court.” Proceedings were conducted without court stenographers or clerks. Six judges and one magistrate were expected to dispose of fifty thousand cases annually. Even if each had worked full time on nothing but Volstead cases, together they would have been able to handle fewer than four thousand a year—and had they done that, no other federal matter would have been adjudicated anywhere in the district, which stretched all the way to Albany. When in frustration Buckner suggested that prosecutions proceed under police court rules—that is, without juries—he was told this was unconstitutional. Buckner’s response was swift: “Apparently it has become easy to amend the Constitution for other purposes.”
Even worse than the strain imposed on the courts was the atmosphere surrounding them. The fifth floor of Manhattan’s Federal Building, Buckner said, was home to “a seething mob of bartenders, peddlers, waiters, bond runners, and fixers.” The fixers, he said, were found even in the men’s rooms, attempting to bribe jurors hearing those few cases that made it to trial. In the courtrooms crooked lawyers encouraged perjury. The Justice Department was asking Buckner’s office for ten thousand convictions a year—the body count—and the only way to even approach the number was to settle, fast, on reduced charges, a guilty plea, and a modest fine. To the bootleggers, speakeasy operators, crooked druggists, fake rabbis, fallen priests, alky cookers, and various other violators dragged into court, the fines were simply fractional additions to their overhead. “To call such proceedings ‘law enforcement’ is a farce,” Buckner said. “To call such fines ‘convictions’ is grotesque.” He suggested that the notation on a defendant’s record should read “Escaped on payment of money.”*
The court situation in New York was possibly more sordid than it was elsewhere in the country, but it was far from unique. Beyond the nickels devoted to the Prohibition Bureau, the resolutely dry Congress, in league with the falsely dry Harding and the hypothetically dry Coolidge, had appropriated virtually nothing to support the legal apparatus that such a radical change in the criminal law required. When Mabel Willebrandt took over her “division” of the Department of Justice, a full nineteen months after the Volstead Act had gone into effect, the staff consisted of four people, Willebrandt included. Congress created no new judgeships, authorized no new positions for U.S. attorneys’ offices, and appropriated no money for new federal prisons—of which there were, as late as 1925, exactly three.
By one accounting, U.S. attorneys across the country spent, at minimum, 44 percent of their time and resources on Prohibition prosecutions—if that was the word for the pallid efforts they were able to sustain on such limited resources. In North Carolina and West Virginia, the federal prosecutors devoted 70 percent of their time to Prohibition violations; in Minnesota, 60 percent; in southern Alabama—where Mabel Willebrandt would directly supervise one of the most aggressive enforcement efforts in the nation—Volstead prosecutions consumed a staggering 90 percent of the federal docket. In wet New Jersey, prosecutors addressed the overload with a modus vivendi that made Willebrandt despair: they would “please the Drys by filing cases,” she recalled years later, “and take care of the Wets by never bringing the cases to trial.”
In state courts the prosecution of local ordinances and statutes took on one of two humors—either a vigor that outshone federal efforts or something close to torpor. The first condition did not necessarily arise from earnest devotion to the law. In many states Prohibition was a profitable venture even for those local law enforcement officials who didn’t accept bribes. Under Indiana’s “Wright Bone Dry Law,” lawyers accustomed to a five-dollar-a-day fee for prosecuting capital cases were rewarded with a bounty of twenty-five dollars for every Prohibition conviction. In Seattle, where the docks teemed with bootleggers unloading their boats into waiting trucks in the middle of the day, King County sheriff Claude G. Bannick, whose office split fines fifty-fifty with local justices of the peace, worked out a mutually beneficial arrangement: violators were always fined, never jailed, so they could be set free to violate once again—to the profit of Bannick and the JP’s. Ohio, so often the trailblazer in novel applications of dry theory and practice, attained a dubious pinnacle in its pursuit of lawbreakers. Small towns and villages were authorized by law to operate “liquor courts” run by local officials, few of them judges. The law also directed that more than half the revenue from fines was paid out to the presiding official and the town. But what gave the Ohio system its special piquancy was a provision in the statute granting each liquor court jurisdiction not just within its own village limits, but anywhere in its county. This brought out the entrepreneurial gene in many local officials, like those presiding over the tiny community of North College Hill, whose 1,104 residents happened to share Hamilton County with the heavily German, thoroughly wet, and very large city of Cincinnati. Like a land-bound privateer, Mayor A. R. Pugh personally led North College Hill’s raids into neighboring jurisdictions, netting more than $20,000 in revenue for his village (and himself) in one period of less than eight months. The mayor knew he could count on the cooperation of the town prosecutor and the town judge, because he held both of those jobs, too.
By 1927 the dwindling number of states still spending any money on Prohibition enforcement together appropriated less than 15 percent of what they allocated for the enforcement of fish and game laws. In the resolutely wet cities and states, where targeted spending was nonexistent, local enforcement ran the gamut from ineffectual to ridiculous. It was almost as if much of the country was returning to the pre-1920 days of local option, when a particular locality could decide at the ballot box whether to be dry or wet. The Eighteenth Amendment had taken away the voters’ legal right to make such a choice, but the Constitution could not compel either citizens or officials to see what they chose not to see. “Under the old local-option plan a community decided whether or not it would have liquor,” Samuel Hopkins Adams wrote in 1921. “Under the new it decides whether or not it will have the law.”
Various cities and states declared their options publicly. In 1927 a report prepared for the Connecticut Department of Labor contained the sort of boast one wouldn’t really expect from a government office: “Connecticut industries rank high, have world renown, and even its bootlegging industry is credited with greater reliability and more reasonable prices than that of other states.” The following year the Detroit Board of Commerce released survey data indicating that the city’s illicit alcohol trade employed fifty thousand people and racked up $215 million in annual sales, making it the city’s second largest industry (and this didn’t include the estimated $2 million paid annually into a “graft trust” that was shared by a group of roughly one hundred Prohibition agents). The auto industry, of course, was Detroit’s largest by a huge margin. But relative to the rest of the competition alcohol did quite nicely—the chemical industry, which ranked third in its contribution to the local economy, was responsible for just 40 percent of the economic activity generated by the booze business.
No survey could determine the wettest city in the country, but there were several contenders for the title. New York was an obvious claimant, but Emory Buckner would develop a few new law enforcement strategies that actually paid off from time to time. After Chicago’s wet, corrupt, and mob-backed Big Bill Thompson was returned to the mayor’s office in 1927 (“When I’m elected,” he promised, “we will not only reopen places these people have closed, but we’ll open 10,000 new ones”), the nation’s second-largest city might well have become its wettest. But during the four-year tenure of mayor William E. Dever and police chief Morgan A. Collins—“these people,” in Thompson’s phrase—the mob’s base of operations had been pushed into suburban Cicero, periodic sweeps had temporarily put a stopper in parts of the booze trade, and Collins could receive a letter like this one, from an officer of the Mid-City Trust & Savings bank: “This has been the cleanest, soberest day (Monday) that we have enjoyed in this Bank for four years. Every Monday we have from 50 to 100 drunks after their money. To-day we had only two partially drunk customers. Now spike the rest of the Bungholes for keeps. Yours for a clean city, C. L. Sayler.”
Like Emory Buckner, Dever thought Prohibition a bad idea but felt duty-bound to enforce it. Politicians and prosecutors of similar inclination held office in most American cities at one time or another during Prohibition, forcing long stretches of uncontrolled wetness to yield periodically to recurring bouts of at least nominal dryness. Usually the outcome resembled what had happened in New Jersey, where Colonel Ira L. Reeves had been responsible for a burst of intensified Volstead enforcement. Reeves’s bitter self-evaluation was concise. He hadn’t gotten rid of liquor at all. Instead, he wrote, “I had raised the price of alcoholic beverages and reduced the quality.” But in at least four major cities—Baltimore, San Francisco, New Orleans, and Detroit—not once was there a lull in the wet storm that blew in on the heels of the Eighteenth Amendment.
Baltimore had all the ingredients. It was a port city, with a large Catholic population, no state enforcement law, a semiofficial bootlegger operating inside the State House in Annapolis, and a famously corrupt police department that also happened to be a model of collective efficiency: speakeasy operators who made regular payments to a “fund for disabled policemen” were excused from any court proceedings. Baltimore also had H. L. Mencken leading the wet cheers in his column in the Sun and spreading the word to his prominent friends. To F. Scott Fitzgerald, who was living in Paris at the time, Mencken wrote, “Baltimore is now knee-deep in excellent beer. I begin to believe in prayer.” To Bishop James Cannon, with whom he had struck up an unlikely friendship, Mencken explained that no, it wasn’t true that a stranger could walk off the street into a bar anywhere in Baltimore and be served instantly. “You would have to be introduced,” Mencken said, “by a judge, a policeman, or some other reputable person.”
San Francisco was a contender for many of the same reasons: working port, large Italian and Irish populations, corruption that reached into the highest echelons of the federal enforcement effort, and a you’ve-gotta-be-kidding-me disdain in the local version. Colonel Ned M. Green, federal Prohibition administrator for northern California, was a self-professed drinker eventually indicted for diversion of seized liquor. (Although he was known for the whiskey- and champagne-laced dinners he hosted at his suite in the Whitcomb Hotel, Green insisted that the incriminating evidence had actually been provided him by “friends with a mistaken idea of kindness.”) Judge Sylvain J. Lazarus was known to order police to return confiscated bottles to their original owners, and the San Francisco County district attorney did double duty as an officer of the local branch of the Association Against the Prohibition Amendment. The city’s proximity to the nation’s most fecund grape-growing regions added to the moisture. According to Sonoma County winemaker Antonio Perelli-Minetti, San Francisco was “the only place in the United States where the distribution of wine was practiced without guns,” because trash collectors had taken on responsibility for delivering demijohns brimming with California red and picking up the empties. No less an expert than General Smedley Butler, visiting San Francisco on New Year’s Eve 1926, observed the partying crowds tumbling out of the city’s big hotels and said he had “never before witnessed such an orgy.”
Sociologist Martha Bensley Bruere, who collected data from ninety-two cities for her 1927 book, Does Prohibition Work? (conclusion: sort of), placed the crown for wettest city on another heavily Catholic port, New Orleans. “There is general disregard of the law and scorn for it,” Bruere wrote. “Most of the men drink something every day.” Izzy Einstein, who always measured how long it took him to procure liquor in any city he visited, would have agreed; the cabbie who picked him up at the New Orleans train station offered to sell him a bottle just thirty-five seconds after pulling away from the curb. When Georges de Latour divided up the market for sacramental wines and hired agents to represent Beaulieu in various parts of the country, he made sure to keep the lucrative Louisiana market for himself. Much of the hard stuff in New Orleans came from neighboring St. Bernard Parish, where Sheriff L. A. Mereaux—a graduate of Tulane Medical School who lived in an 1808 mansion with its own private racetrack—collected a toll on all the bootleg booze passing through his jurisdiction. Visiting New Orleans in 1927, Michigan lawyer Lloyd T. Crane sent a postcard of the landmark Old Absinthe House to his friend Judge Arthur J. Tuttle: “From appearances,” he wrote on the back, “it is the only place where liquor is not sold here.”
But the champion had to be the heavyweight in Tuttle’s own jurisdiction, Detroit. By the time the Board of Commerce designated bootlegging the city’s second largest industry, Detroit had already lived through ten years of experience as the “City on a Still,” as historian Larry Engelmann called it. The two years of state Prohibition that had preceded the federal variety had accelerated a process that would become familiar in most other American cities: a brief period of law observance followed by a spasm of illegal importing, a futile tremor of enforcement, and finally a sustained deluge inundating the entire city. From across the river in Windsor came as many as half a million cases of liquor a month, most of it either dispatched by the Bronfman brothers in sealed railroad cars bearing forged documents, or ferried over in the hundreds of small boats that made up the so-called Mosquito Fleet. The Mosquitoes were more dangerous than the name might suggest. The boatmen were often armed and willing to shoot it out with the understaffed and underequipped Detroit branch of the U.S. Customs Service, which for a time had responsibility for patrolling a hundred miles of waterway, from Lake Erie to Lake Huron, with just three boats and twenty men. There were reports of a pipeline leading directly from the Hiram Walker Distillery on the Canadian side to some unknown spot in Detroit (probably untrue), and of a motorized cable pulling a pair of sled-mounted containers from an uninhabited Canadian island at the northern end of the river to a waterside house in Grosse Pointe Park (almost certainly true). The Ambassador Bridge, spanning the Detroit River, and the automobile tunnel beneath it opened in 1929 and 1930, respectively, both of them privately financed creations of Prohibition. “In less than three years,” wrote Malcolm Bingay of the Detroit News, “around $50,000,000 was spent so that people could get back and forth—quickly—between Detroit and our ever-kind liquor-supplied neighbors of Windsor.”
For a lot of the booze flowing across the river, Detroit was only a way station. An estimated 1,500 to 2,000 cases of liquor went on to Chicago daily, mostly under the auspices of an intercity criminal alliance forged between Al Capone and Detroit’s infamous Purple Gang. What stayed behind, plus what emerged from the hundreds of illicit distilleries and breweries scattered around southeastern Michigan, was sufficient to stock the back bars of the speakeasies, blind pigs, and beer flats that multiplied like mushrooms—Detroit had 7,000 of them by 1923, three times as many by 1928 (one journalist counted 150 on a single, soaking block). On New Year’s Day 1924, the front page of the Detroit News reported that 100,000 drinkers had clogged the city’s downtown business district in a “carnival of drunkenness” the night before, their “ribald cries and profanity” a sure sign that “it was drink, drink, drink everywhere.” Soon Detroit’s legitimate restaurant business began to collapse in the face of the untaxed, unregulated competition. In time, so many waiters, waitresses, cooks, and other restaurant workers fled for jobs in the prospering speaks and pigs that the AFL-affiliated Hotel and Restaurant Employees union had to shift their organizing efforts to places that, under the law, did not exist.
Local judges yawned at the liquor laws. In the summer of 1923 a prosecuting attorney showed up in a Detroit courtroom to tell Judge Edward J. Jeffries that the evidence in a bootlegging case—a large quantity of seized liquor—had mysteriously disappeared from police headquarters. “That’s a poor place to bring liquor,” Judge Jeffries told the prosecutor as he dismissed the case. Clarence Darrow, in Detroit two years later to defend a black man in a controversial murder trial, spent his lunch hours drinking with judges and other officials at Cohen’s speakeasy near the courthouse. Unwilling to leave the building on the day the case went to the jury, Darrow and his colleagues waited for the verdict while sharing a supply of Scotch in an adjacent courtroom that had been unlocked by an obliging court officer.
Enforcement did take place in Detroit; it just didn’t have anything to do with drinking. A succession of mayors and police chiefs would occasionally crack down on places that were disorderly, or fostered criminal activity, or belonged to an ugly category known as “school pigs,” sleazy operations set up near high schools. But any establishment that obeyed the rest of the criminal code—all the laws that had nothing to do with Prohibition—was left alone. Mayor John W. Smith was a progressive, good-government Republican who came to believe Prohibition was “a tragic joke.” Running for reelection in 1927, he openly declared he would not enforce any wet laws, yet he won the support of some of the city’s most notable citizens, among them architect Albert Kahn, auto magnates Fred J. and Charles T. Fisher, and the city’s greatest athletic hero, Ty Cobb. Smith ended up losing to a dry, John C. Lodge—but in Detroit “dry” was a relative term, which Lodge made clear when he said he intended to be “practical” in his enforcement policy. Which meant Detroit stayed wet.
To Judge Tuttle, trying to keep up with an exploding docket in federal court, the situation in southeastern Michigan was an outrage made worse by the indifference of local officials. The federal presence in Michigan was limited to just three federal judges, two U.S. attorneys, two federal marshals, and a local office of the Prohibition Bureau that was underfunded and wracked by corruption. A note from a woman complaining about bootlegging in her neighborhood provoked Tuttle to spill out his frustrations in a lengthy letter. There were hundreds of state judges, hundreds of state prosecutors, and thousands of local cops, he told her, yet everyone seemed to expect him to enforce the law on his own. “The people seem to be turning to the Federal Government and expecting Uncle Sam to do everything,” he wrote. Why didn’t she ask her local police to do their jobs? To Michigan’s attorney general, he bitterly complained that Volstead cases had been “crowding all other classes of business out of my court.”
At least Arthur J. Tuttle’s frustrations never approached those that afflicted his Minnesota colleague, federal district judge John F. McGee—the “bootleggers’ terror” who had commandeered sightseeing buses to ship Volstead violators off to jail. “The fact is that the United States District Court has become a Police Court,” McGee wrote from his chambers in 1925. Eighty percent of the cases brought before him were Prohibition related, he added, “with the end not in sight. I started, in March 1923, to rush that branch of the litigation and thought I would end it, but it ended me.” Then McGee put down his pen and blew his brains out.
THE TENSION BETWEEN federal and state enforcement programs could not be resolved. Nor could the burden on the federal courts be relieved. Emory Buckner’s friend Felix Frankfurter proposed that the federal system confine its efforts to interstate violations and illegal imports, “leaving to the states all intra-state violations of the law.” This sort of federal focus might have imperiled, or at least diminished, the cross-border smuggling business. But the medicinal alcohol market, the sacramental wine scam, the booming wine grape business, the malt syrup bonanza, and large portions of the enormous industrial liquor racket would have enabled New York, Baltimore, San Francisco, et al., to remain exactly as they were: open cities with open taps. Yet even if a plan like Frankfurter’s could have been effective, it could never have pleased the drys, who remained as committed to notional enforcement as they were to the authentic variety.
The disharmony created by federal effort at its most earnest and local resistance at its most craven resounded most strikingly in Mobile, Alabama. Its status as a port with a majority Catholic voting population had long made Mobile an exotic presence in Alabama. During the push toward state Prohibition in the first decade of the century, Mobilians made what a contemporary journalist called “a spectacular but ineffectual threat” to secede from the state rather than submit to a dry law. They really needn’t have bothered; until 1923 state and federal Prohibition disturbed the liquor trade in Mobile about as much as it disrupted the caribou business in the Yukon. A version of Rum Row operated offshore in the Gulf, moonshine from stills scattered across the southern Alabama countryside flowed straight downhill to the black part of town, and members of the city’s political and commercial establishment profited from a protection racket that would have been impressive in Detroit or Chicago. Dry resistance, such as it was, was centered in the St. Francis Street Methodist Church, where in 1924 members of the Men’s Club heard a visiting politician chastise them for their inaction against corruption and liquor. “Wrong cannot exist when men and women take up the banner of Christ,” the visitor said. He challenged them not to “sit supinely” while depredation ravaged their city.
The speaker was thirty-eight-year-old Hugo Lafayette Black, brought to town as a special prosecutor by Mabel Willebrandt. He had not yet begun his passage from loyal member of the Ku Klux Klan to champion of individual rights on the U.S. Supreme Court. Dry both personally and politically, he had been the scourge of Birmingham at the onset of statewide Prohibition nine years earlier, when as the chief prosecutor of Jefferson County he had subdued bootleggers and saloon operators by summoning moralistic passion and exceptional legal skills. As a local judge, he handed out maximum sentences as if they were business cards. Like Gifford Pinchot’s enforcement agents in Pennsylvania, who were paid by the WCTU, on this new assignment Black had to get his first few paychecks from the Mobile Citizens’ League until the Justice Department figured out how to compensate him.
Black arrived in Mobile on the heels of another unlikely character dispatched by the attentive Willebrandt: Izzy Einstein. During his extended stay in the city, “the Sherlock Holmes of the prohibition enforcement officers,” as the Mobile Register called him, penetrated every aspect of the city’s liquor business. He rolled out his usual set of disguises—in his career he’d posed as a farmer, a streetcar conductor, a gravedigger, an opera singer, and countless other types—but the Mobile assignment didn’t require his usual subterfuge. “Izzy believes that his Hebraic personality and his foreign accent are invaluable assets in his work,” the Register reported. “In nine cases out of ten,” Einstein told the newspaper, “I am taken for granted as a traveling salesman. I just happen to be that type.” The worst part of his stay in Mobile was gathering the evidence. “This is just my first experience with southern shinny,” he said. “Just tasting it made me violently ill.” But he never had the opportunity while in Mobile to utter the famous words he always used when revealing his identity to an unsuspecting bartender or beer peddler: “There’s sad news here. You’re under arrest.” Given the length of the investigation and the size and influence of the quarry, Einstein had to stay under cover until the task was complete.
That happened on November 13, 1923, when a regiment of federal agents armed with eighty-five search warrants swept across Mobile. A month later, U.S. attorney Aubrey Boyles obtained indictments against 117 people, among them a bank president, a prominent shipbuilding executive, the Mobile County sheriff, five deputy sheriffs, one state legislator, several lawyers, at least one physician, a member of the county revenue board, and Mobile police chief P. J. O’Shaughnessy, who on the day the indictments were handed down tried to escape to friendlier environs. O’Shaughnessy said he’d decided to take a train to New Orleans because he wanted a drink.
Bringing in a prosecutor with Hugo Black’s talent, experience, and dedication to the dry cause was a smart move on Willebrandt’s part, but she didn’t do it because she was dissatisfied with Boyles, the sitting U.S. attorney. She had no choice but to import legal talent after the Mobile political establishment came up with a clever way to derail the federal prosecution: they arranged for local officials to arrest Boyles for attempted bribery.
Following nine months’ effort on the part of Attorney General Harlan Fiske Stone, the ludicrous charges brought against Boyles were vacated. But so was the conviction of one of the Mobile ringleaders, Frank W. Boykin, a businessman and political fixer who would later serve fourteen terms representing Mobile in the U.S. House of Representatives. When a telegram that Black sought as evidence turned up missing, the future congressman told the court, “I ate it.” After two trials, a jury heavy with Klansmen finally gave Black sustainable convictions of several key figures in the Mobile case—a feat that led directly to his election to the U.S. Senate and in turn to his eventual elevation to the Supreme Court.
TO EMORY BUCKNER, New York City’s police department could be less cordial or cooperative than some of the bootleggers he tried to shut down (one of those he convicted, a large-scale operator named “Big Bill” Dwyer, told Buckner while the jury was out, “You know, while you were speaking, I thought to myself, I really should be convicted”). Mabel Willebrandt, who was sympathetic to Buckner, figured that each of the thirty-two thousand speakeasies in New York probably paid a beat cop five dollars a day to keep the taps and the cash register open. Her estimate was wildly low for speaks located in midtown Manhattan, where protection money could run to $150 a week, leading the operators of the Bath Club and other upmarket spots to form a sort of bribery collective, paying off the authorities from a common pool of money. But even so, Willebrandt’s calculations were eye-popping. “It is clear,” she said, “that if the police of New York City, and some of the politicians who control their appointments, are not collecting at least one hundred and sixty thousand dollars a day or sixty million dollars a year from the speakeasies alone, they are either very honest or very stupid. Take your choice!”
Roy Haynes’s force of federal agents may have been just as corrupt, but unlike the city cops they at least had to go through the motions to keep their jobs. The thousands of Volstead violators left unmolested by the NYPD were instead rounded up by Haynes’s men, who delivered them by the wagonful to the badly degraded Federal Court in downtown Manhattan. This led an exasperated Buckner to concoct an opportunity that quickly became known as “Bargain Day.” Publicly promising to request light fines in exchange for guilty pleas, he invited defendants to the Old Post Office Building south of City Hall, where his staff, working with two cooperative federal judges, could process five hundred cases at a time and clear up the backlog. This early example of plea bargaining was cemented into American legal practice when the Supreme Court affirmed its constitutionality in 1930—in the words of legal scholar Jason Mazzone, writing in 2009, a “momentous development” in American criminal law.
Buckner also perfected a widely used procedure that enabled him to avoid the criminal court process entirely. Under the federal civil code, any structure identified as a “common nuisance” could, upon issuance of an injunction, be seized under the legal doctrine of civil forfeiture and closed for an entire year. Buckner reached into his pocket for $1,500 of his own money, handed it to four young lawyers on his staff (including John Marshall Harlan, who would be appointed to the Supreme Court thirty years later), and sent them out to collect evidence at the city’s speakeasies. After buying a few drinks, they needed only swear to a judge they had done so, and they’d instantly have an injunction in hand. Within hours court officers would visit the offending establishment and clamp a padlock on the door. Although Buckner’s “Four Horsemen,” as they were inevitably called, succeeded in closing down such high-end establishments as the Colony Club and the Club Deauville, they were shut out when Judge John C. Knox told Buckner he didn’t much like the idea of padlocking the Hotel Astor. Buckner obligingly withdrew that request, but the procedure soon became so familiar that Billy Rose produced a Broadway revue called Padlocks of 1927, with a cast that included a young hoofer named George Raft and the raucous speakeasy hostess Texas Guinan. Guinan, who famously greeted her customers with a loud “Hello, suckers!,” took to wearing a necklace of padlocks from time to time.
Emory Buckner knew that padlock raids were never going to dry up New York. According to historian Michael Lerner, they just changed the nature of speakeasies: when Buckner’s men were on the prowl, speakeasy operators stopped investing in fancy interiors and fixtures, opting instead, as The New Yorker put it, for “the informal conjunction of a back parlor and a bucket of paint.” But even if padlock cases didn’t stop the flow of liquor, they consumed very little time or effort. When coupled with the efficiencies achieved on Bargain Day, they enabled Buckner’s men to turn their attention away from petty cases and toward the big-time bootleggers who were exercising increasing control over the New York market.
This was what concerned Buckner most. Reluctant dry he may have been, but he could not disguise his alarm at the growing muscle being wielded by large-scale criminal enterprises that were fueled by liquor money. To go after them, he believed, it was necessary for law enforcement officials to forget about the raw numbers of arrests and convictions that were longed for by the dry establishment. “It seems an impossible thing to persuade those who want law enforcement that what is required here in this district is less enforcement,” he told friends. His goal, Buckner said, was to “make an effort to stop 49 arrests out of 50, and yet mak[e] the fiftieth more effective than all combined.”
Buckner’s plan made sense. It was endorsed by Mabel Willebrandt, who had long thought the Prohibition Bureau would be far more effective if it aimed its efforts at the generals instead of the foot soldiers, mess cooks, and camp followers clattering along behind the big bootlegging syndicates. But when Buckner gave an interview to an inconsequential new magazine—it was the nine-month-old New Yorker—he made the mistake of saying, “The man who buys liquor when he is thirsty for it is not a criminal in the sense that a check forger or thief is a criminal.” He was further reported to have said, “I have no particular quarrel with him.”
As a result, Buckner got into a quarrel with a more potent adversary. Two days after the magazine appeared on newsstands, Wayne Wheeler was in the White House. Buckner’s apostasy had led Wheeler to complain formally to President Coolidge and to make sure his displeasure was known to the press. “He is becoming a regular visitor,” the Times reported, oddly surprised, “and today he was the first on the list of White House callers.” Wheeler’s widely publicized visit compelled Coolidge to let it be known that the White House could not possibly countenance a policy that suggested possession of illegal liquor was not a crime. Wheeler gloated. Buckner, whose regard for Coolidge was slight, nonetheless disclaimed his “no particular quarrel” comment, and in the following week’s issue The New Yorker chastised him for allowing Wheeler “to stampede him into half-hearted retreat.”
Not that it made any difference. In that same issue, the magazine’s regular feature, “The Liquor Market,” reported that a case of Scotch could be obtained for something between $50 and $70, imported gin was holding at $65, and champagne was up to $80 to $120, “depending on reliability and brand.” Overall, prices remained “steady, but subject to inflating by individuals.” The price gouging resulted not from shortages brought on by padlock raids or by the crackdown on the syndicates. The higher prices showing up here and there, the magazine concluded, were simply “due to pre-holiday and football demand.”
* Expertise, in general, was his stock in trade. Fisher was coauthor of a bestselling hygiene textbook, inventor of a precursor of the Rolodex, founder (with the support of Alexander Graham Bell) of the Life Extension Institute, and a noted eugenicist. He was also considered an expert on the English language. Asked whether “Yes, We Have No Bananas” could be considered grammatically correct, Fisher replied, “Yes, it would be correct, if the Statement was preceded by the question ‘Have you no bananas?’”
* August A. Busch, whose vast facilities produced glucose, corn oil, infant formula, soft drinks, and a broad variety of other products during Prohibition, entered the ice cream market with a chocolate-coated bar he named Smack.
* Pound followed him six years later, joining the Harvard Law faculty in 1910 and becoming dean in 1916.
* An especially vivid demonstration of this phenomenon was revealed in congressional testimony presented in 1926. A man who apparently made his living as a defendant, standing in for actual lawbreakers, was shocked to learn that a zealous prosecutor had arranged to have him sentenced to three days in jail. “Now, my contract was to appear in court, answer the calendar, and pay a $100 fine,” he told the judge, “but not to go to jail. I was not the man at all. I was never arrested in my life.’ ”
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