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SEPARATE REPORT OF MONTE M. LEMANN PDF Print E-mail
Written by Administrator   
Saturday, 09 January 2010 00:00

Separate Report of Monte M. Lemann

Under the language of the Appropriation Act which provided funds for the work of the Commission, it is the duty of the Commission to inquire into the enforcement of the Eighteenth Amendment and the laws enacted in pursuance thereof. I construe this language as a mandate to assume the Eighteenth Amendment as the established national policy. The wisdom, advantages and desirability of prohibition in the abstract, it be enforceable, are not, as an original question, within the province of the Commission, whose primary function it is to ascertain the facts bearing upon the problem of enforcement and to make such recommendations as the ascertainable facts may seem to justify.

Except with respect to the machinery of enforcement, the amount of scientifically provable facts bearing upon the enforcement of the eighteenth Amendment made available to the Commission is small, and the material before the Commission consists chiefly of statements and reports by persons whose positions give them special opportunities for observation and entitle their estimates upon the issues of fact to more weight than those of the ordinary individual. As to the machinery of enforcement, omitting the machinery of the courts and penal institutions, an extended study has been made for the Commission by Messrs. Henry S. Dennison and Albert E. Sawyer and their staff. That study presents in considerable detail the history, development and present situation of the federal forces dealing with prohibition enforcement, excluding the federal courts and penal institutions. The facts collected in this study, some of which are set out in the report of the Commission, are sufficient, I think, to support the conclusions that (a) even upon the most restricted theory of the proper field of federal activity, the organization for the enforcement of the National Prohibition Act is and always has been inadequate, (b) the uncertainty and changes attending the early history of the Prohibition Bureau and the poor quality of the field force prior to the extension of Civil Service prevented the organization from operating with reasonable efficiency prior to the reorganization of 1927 and for some time thereafter, (c) the federal machinery for the enforcement of the National Prohibition Act has not yet had an opportunity to demonstrate the most that it can accomplish, and (d) a substantial improvement in enforcement may reasonably be expected with increased personnel and equipment.

The machinery of enforcement may, in my judgment, without disproportionate expense, be made adequate to cope with the industrial alcohol and smuggling aspects of the enforcement problem.

The entire number of plants holding permits to produce ethyl alcohol, exclusive of breweries conserving the alcohol driven off, was on June 30, 1930, forty-nine(1) plants, of which two produced no alcohol during the fiscal year ending June 30, 1930, were owned by twenty-one corporations on June 30, 1930. These figures were furnished to the Commission by the Technical Division of the Bureau of Industrial Alcohol. It is, I think, reasonable to assume that those directing these enterprises will not connive at violation of the law, but even if they were disposed so to do, their number and the location of their plants is sufficiently limited to permit of adequate supervision. During the fiscal year ending June 30, 1930, there were in the entire country only sixty-seven denaturing plants in operation and of these there were basic permits held on June 30, 1930, by only seven which might be termed independent. Of these two were subsidiaries of large corporations and used all of the denatured alcohol which they produced, so that there were in fact on June 30, 1930, only five actually independent denaturing plants(2). Enactment of legislation prohibiting independent denaturing plants would entirely remove any possibility of difficulty as to them. The study made by Messrs. Dennison and Sawyer calls attention to the difficulty presented by the so-called coverhouse, or establishment purchasing from permittees products made by them from specially denatured alcohol, for resale to illegitimate denaturing plants. The difficulty with respect to these coverhouses arises from the fact that under existing legislation there is doubt as to the Government's authority to examine the records of persons purchasing products manufactured from specially denatured alcohol or to require reports from such persons, for the purpose of determining the ultimate disposition made of the products so purchased. This difficulty may also be met by appropriate legislation.

The new process for the manufacture of synthetic alcohol from petroleum is likely to cause some added difficulty in dealing with the problem of industrial alcohol, but not beyond the reasonable power of the federal government to meet. It must be borne in mind that even with the abandonment of prohibition, the federal government would continue to be faced with the problem of supervising industrial alcohol plants and preventing diversion of industrial alcohol in order to protect the government's taxes, although it is true that the incentive to divert would then be confined to evasion of the tax.

As to legitimate cereal beverage plants or breweries, there were in force on June 30, 1930, in the entire country only two hundred and seven permits authorizing the operation of such plants(3). These plants were inadequately supervised, but it would require only a relatively small force of men (estimated at four men for each brewery) to supply this supervision, and no serious difficulty in enforcement appears to be presented at this point.

Upon the facts presented, I have also reached the conclusion that the difficulties of enforcement with respect to smuggling are exaggerated. Of course, it always will be impossible entirely to prevent all smuggling of liquor. It is also impossible to completely prevent the smuggling of other commodities. Conceding that a greater difficulty is presented in the case of liquor, it seems reasonable to conclude that a moderate increase in personnel and in the number of first-class destroyers assigned to the Coast Guard service, an addition to the patrol service of faster boats, radio equipment and silencing devices, accompanied by an increase of two or three hundred men in the Customs service, would eliminate most of the smuggled liquor. In this connection it may be observed that the official statistics of the Canadian government with which the Commission has been furnished show that the quantity of all alcoholic beverages declared for export from that country to all points was 4,816,291(4) imperial gallons in the year ended March 31, 1930. The figures include alcoholic beverages declared for export not only to the United States (prior to the recent ban by the Canadian government of such exports), but also all liquors exported to St. Pierre and Miquelon, Central America and other countries. While it is true that the ratio of increase in the quantity of liquor declared for export from Canada to St. Pierre and Miquelon and Central American points has been considerable, the total amount of liquor so exported remains relatively small. In the fiscal year ended March 31, 1930, the total quantity of alcoholic beverages exported from all Canadian ports to St. Pierre and Miquelon was 1,038,980 gallons(5). Assuming that the entire quantity of liquor exported from Canada found its way into the United States--an assumption which seems beyond the possible fact--the total quantity would not be as great as commonly supposed. In addition to liquor declared for export through regular channels, some may be surreptitiously brought into the United States directly from Canada, but the quantity so introduced can be acquired only by individual purchasers in Canada and it does not appear that in the aggregate it could bulk very large. A consideration of these figures suggests that much of the liquor which is purchased upon the assumption that it is imported actually represents moonshine spirits distilled and sold under fictitious labels. In considering the problem arising in the prevention of smuggling and the frequently referred to extent of our land and water external boundaries, it must again be borne in mind that a serious burden is likely to be thrown upon the federal government if prohibition is abandoned in carrying out the federal task of preventing smuggling of liquor from wet states into dry states, since interstate roads, both primary and secondary, far exceed the international highways. The great increase in mileage of paved roads, made possible by federal aid and large state bond issues, and the extent of the use of automobiles would make this difficulty one of no inconsiderable proportions, in meeting which active local cooperation would be necessary.

As the foregoing indicates, while industrial alcohol and smuggling present some serious difficulties, they seem to me to be quite within the power of the federal government alone to deal with without any unreasonable expenditure or unduly large organization. The great problem in the enforcement of the National Prohibition Act lies in the ease with which spirits are manufactured in stills both upon a large and small scale and the facility and extent to which wine and malt liquors may be and are made in and outside of homes. The increase in the production of corn sugar in this country from 157,276,442 pounds in 1919 to 896,121,276 pounds in 1929(6), without adequate explanation in ascertainable legitimate use, is one indication of the extent to which the illicit manufacture of liquor in stills has increased. Cane and beet sugar, corn meal, other grains and molasses also afford other easily available material for the illicit manufacture of alcohol in stills. It is conceded that it is impossible to do more than guess at the total quantity of alcohol which is currently available from these sources; but the estimate of the Bureau of Prohibition of the Department of Justice for the fiscal year ending June 10, 1930(7), which is the lowest that I have seen for that year, places the total amount possibly manufactured from corn, cane and beet sugar, corn meal or other grains, and molasses at 29,950,000 gallons of absolute alcohol, equal to 59,900,000 gallons of 100 proof alcohol. The Bureau of Prohibition in the Department of Justice has also estimated the possible illicit production of wine and malt liquor during the fiscal year ending June 30, 1930, to be 118,320,300(8) and 683,032,000 gallons respectively. There is no method by which the correctness of these estimates can be checked with reasonable precision, but the expert information that the Commission has been able to obtain does not warrant any conclusion that the estimates, in general, are above the fact. The figures above quoted are exclusive of liquor estimated as possibly placed in circulation through smuggling and diversion of industrial alcohol. The total estimates reflect a probable per capita circulation of intoxicating liquor which, while still considerably less than before prohibition, is much too great to sustain any claim of reasonable enforcement or observance of the Eighteenth Amendment(9). In the year ending June 30, 1930, according to the annual report of the Commissioner of Prohibition, there were seized 16,180 distilleries, 8,138 stills, 4,152,920 wine gallons of malt liquor and 34,183,427 wine gallons of mash(10). Yet the statements made to the Commission indicate that intoxicating liquor is readily obtainable in every city of consequence in the country.

To break up the manufacture and distribution of intoxicating liquor made on this scale in thousands of stills and apparatus for the manufacture of wine and home brew scattered throughout the nation, both in cities and at many lonely spots in the country, the field force in the prohibition service on June 30, 1930, aggregated 1,786 for the entire country, made up as follows:

Agents 1,484 Investigators 109 Special agents 193 Total 1,786

Messrs. Dennison and Sawyer have recommended an increase of 60 percent in the number of prohibition agents and of 100 percent in the number of investigators and special agents. The adoption of these recommendations would mean the employment of 890 additional agents and 302 additional investigators and special agents, or an aggregate addition to the field force of 1,192, bringing the total prohibition field force for the entire country to approximately 3,000. The apparent conclusion that so moderate an increase would permit effective dealing with the enforcement problem I understand to be based upon the theory that by concentration upon the large, conspicuous cases and the organizing minds which direct the distribution of illicit liquor, the sources of supply may be effectively broken up(11).

Mr. Dennison is a business executive and organizer of proven capacity and success. His judgment must therefore command respectful attention. Except, however, upon the theory that with improved efficiency in the federal enforcement agencies that could also be obtained more cooperation from state enforcement agencies, it does not seem reasonably likely that even upon the proposed plan of concentration upon sources of supply (which appears to me a proper administrative policy) a federal field force of approximately three thousand men could effectively prevent the operation of stills, the manufacture of home brew, beer and wine and the distribution of intoxicating liquors throughout the country. To accomplish a result of this magnitude in a country of the size of the United States would, in my judgment, require the services of many thousands of enforcement officers. Such a federal police force could not be maintained consistently with our governmental system.

Assuming that it were in fact feasible and desirable for the federal government to maintain a police force of the size requisite to cope with the illicit manufacture and sale of intoxicating liquor throughout the country, there would be required a corresponding increase in federal courts and federal penal institutions if the federal government were to carry the burden of enforcement without local aid. According to the reports of the Commissioner of Prohibition and Attorney General for the fiscal year ending June 30, 1930, there were terminated in that year in the federal courts 52,706 criminal cases under the National Prohibition Act, involving 72,673 persons as defendants, of which there were convictions in 44,484 cases (54,085 defendants). 74.4% of the defendants in cases terminated were convicted. Of the persons convicted 48,577 of 89.8% pleased guilty (a ratio which did not exceed the ratio in other federal criminal cases but which may be more significant in prohibition cases because of their far greater number) (12). In the same year there were 8,224 civil injunction suits disposed of in favor of the United States and 3,668 temporary injunctions obtained in prohibition cases in addition to approximately 3,000 libel suits (13). The Commission has now under way a field study of the business of the federal courts in thirteen important districts. This investigation should make available for the first time detailed facts with respect to such matters as the time now actually spent in federal courts upon enforcement of the prohibition law, the manner in which that enforcement is dealt with, the extent to which it interferes with other business of the courts, and the possibility of any substantial and compensating relief to those courts from other changes in their jurisdiction or from the repeal of such statutes as the Dyer Act relating to the theft of motor vehicles. I should have preferred to express no opinion upon the federal court situation until this investigation had been completed, but upon the material now available in the reports of the Attorney General and the Bureau of Prohibition, it is difficult to avoid the conclusion that at least in many of the larger cities of the country the federal court organization could not meet increased demands from prohibition cases except by increases in the number of judges, court rooms and incidental equipment(14). Reflection has convinced me that the bill authorizing the United States Commissioners to pass in the first instance upon petty cases is open to serious objection and would not in practical operation relieve the congestion existing in federal courts in metropolitan areas.

If the increase in the field enforcement force recommended by Messrs. Dennison and Sawyer should be made, the increased efficiency of the field force should, in the ordinary course, be reflected in an increased number of cases for prosecution in the courts and especially in the number of serious cases requiring much time for trial.

In addition to the court problem, there is also to be considered the situation with respect to penal institutions. Assuming that the field forces were increased and that the courts were able to adequately dispose of prohibition cases, an increase in the number of convictions and in the gravity of sentences must be expected. The reports of the Commissioner of Prohibition show that the percentage of convictions receiving jail sentences increased from 28.5% in 1928 (15) to 33.7% in 1929 (16) and 41.4% in 1930 (17), and the average sentence in days per jail sentence imposed increased from 120.7 in 1928 (18) to 140 in 1929 (19) and 227.7 in 1930 (20). This has already resulted in a considerable increase in the number of violators of the National Prohibition Act actually confined in federal institutions. The number of long term liquor law violators confined in the five principal federal institutions increased from 1,887 on June 30, 1929 (21) to 4,296 on June 30, 1930, at which date the liquor law violators comprised 34.8% of the total population of these institutions. This was substantially more than the percentage of violators of the narcotic acts (which was 22%) or of the motor vehicle act (which was 13.2%) (22). Of the 10,496 federal long term prisoners received from the courts during the year ending June 30, 1930, 4,722 or 45% were sentenced for violation of the Prohibition Act, while the number of such prisoners received under sentence for violation of the Narcotic Act was 1,752 (16.7%) and those received under sentence for violation of the Dyer Act was 1,458 (13.9%). The reports of the Attorney General for the fiscal years 1928 and 1929 are not made on a precisely comparable basis but they indicate that the prohibition law violators received in federal institutions under long term sentences in those years were 2,530 and 3,589 respectively (23). These figures indicate a steady increase in the number of prohibition law violators flowing to federal institutions, an increase which it would seem must be accelerated as enforcement became more effective. The figures quoted include only federal long term prisoners. Until recently no information was available as to federal short term prisoners held in county and municipal institutions, but figures recently received (24) from the Bureau of Prisons of the Department of Justice show that in the year ending June 30, 1930, there were received from the courts under short term sentences for liquor law violations a total of 21,427 prisoners and that on June 30, 1930, there were present in county and municipal institutions 5,680 prisoners under sentence in federal liquor cases (which figures includes long term prisoners awaiting transfer to federal penitentiaries as well as short term prisoners sentenced to jail). As more men are arrested for violation of the National Prohibition Law and more are adequately tried, convicted and sentenced, the burden upon the federal penal institutions seems bound to continue to increase at a rapid rate.

With respect to all the agencies required for enforcement, police, courts and prisons, the conclusion seems inevitable that the federal government alone cannot bear the burden of the enforcement of the Eighteenth Amendment. Adequate enforcement of the Amendment would require the assistance of local police officers as well as the machinery of state courts and penal institutions supplemented by a large measure of voluntary observance. The problem of enforcing the Eighteenth Amendment, therefore, reduces itself to an inquiry as to the possibility of securing the necessary cooperation from the states and cities and of arousing public opinion in favor of the enforcement and observance of the law. That such cooperation and public opinion do not now exist, at least in most urban districts, upon any effective scale, seems reasonably clear from the general statements and reports made available to the Commission and the amount of intoxicating liquor in circulation. According to the 1930 census, of the total population of the United States, 122,755,046, 30%, or 36,325,736, live in cities of more than 100,000 inhabitants each and 49,242,777, or 40%, live in cities of more than 25,000 inhabitants each. If the law is not enforceable in cities of the country where the use of alcoholic beverages is most likely to be abused, it cannot be considered as enforceable in the proper sense as a national instrument. What may be accomplished in the direction of securing the necessary cooperation and in the arousal of public opinion is a matter of judgment upon which men will react differently with different qualities of temperament and as to which the judgment of no ordinary individual, and least of all mine, is of particular significance. I was originally disposed to indulge some optimism in the matter upon the theory that improved Federal enforcement might bring a change in the attitude of those who were now purchasing and drinking liquor and that improvement in public opinion might be attained by more consideration of the great difficulties involved in alternative plans of liquor control and of the danger of corruption, political intrigue, and economic and social abuse which they involve, as well as by emphasis upon law observance and appeals to citizens to abstain from subsidizing violation of law aggravated at times by corruption and violence. But I find it impossible to justify such optimism in the face of the arguments stressed in the report of the Commission emphasizing the popular objections to the regime of a prohibitory law and the reasons which many persons have for believing these objections well founded. Without considering the validity of the objections and reasons thus stressed, as to which opinions will widely differ, it seems to me clear that they do not justify failure to observe the law. Their existence among great numbers of people including many respectable citizens must, however, be recognized as a fact, and it is not open to doubt that leaders of opinion everywhere are regularly and openly drinking intoxicating liquor, which can be furnished only in violation of the Eighteenth Amendment. After considering the arguments made in the report of the commission, I cannot find any reasonable ground for the expectation that public sentiment, especially in urban districts, can be changed to the extent necessary to bring about the local cooperation required for the general enforcement and observance of the law. I have reached this conclusion with reluctance because I am deeply sensitive to the difficulties in finding any substitute method of controlling the liquor traffic which will avoid the dangers of intemperance, corruption, and political abuse found in the regulatory provisions prevailing prior to the adoption of the Eighteenth Amendment.

When alternatives to national prohibition are considered, the same state of public opinion, emphasized in the majority report, which leads me to the conclusion that the local cooperation necessary for the enforcement of the National Prohibition Act cannot reasonably be expected, seems to me to require the conclusion that repeal is the only consistent alternative. With great deference to the opinion of those who are so much better qualified than I to consider the matter, I do not think that to substitute for the Eighteenth Amendment a provision leaving the matter to Congress is any solution. Unless the Commission, after its opportunity for study, is prepared to recommend to Congress a concrete plan for dealing with the situation, the suggestion that the matter be referred to Congress seems to me not a dispose of the problem or to make any substantial advance in its disposition. Moreover, this proposal would mean that the liquor question would play a large part every two years in the election of Congress, that a fixed national policy of dealing with it would never be assured (25), and that all the political influence of the liquor interests would be introduced actively into our national affairs. It is suggested that this would be preferable to having these interests active with each state legislature, but relegation of the matter to Congress would carry no assurance even of this accomplishment, since Congress doubtless would not undertake to force any state to be wet which desired to be dry, and that issue would still have to be fought out in each state. If it be a fact that no law can be adequately enforced which is contrary to local public opinion, no recommendation can consistently be made that the matter be left to Congress so as to enable the majority of that body to impose its view upon every community. If Congress should undertake to prohibit the saloon, the difficulties of effective federal enforcement in cities would not be substantially less than they are now in the absence of local public opinion and effort by local law enforcement agencies. If local opinion is against the saloon, as it should be, it will assert itself through state law. Nor is there any need for any amendment to the Constitution to permit of federal control in the matters which would fall properly within the field of federal control upon proper recognition of local public opinion. The power to regulate interstate commerce is adequate to permit Congress to control interstate movements from the wet states into dry states under a law of the general nature of the Webb-Kenyon act.

In considering the experience of Sweden and of the Canadian provinces in connection with systems of government control, it must be observed that while the per capita consumption of spirits under these systems showed a considerable drop in the earlier years of their operation, it has shown a quite steady per capita increase in both the Dominion of Canada (26) and Sweden in the last several years (27). I have not given elaborate consideration, however, to the operation of these systems, because I think the evils which would flow from any federal dispensary system, either through direct government control or through a corporation the net profits of which above a limited extent would inure to the government, would present governmental difficulties as serious as are encountered in our present system. If an experiment with governmental control is to be undertaken, it appears to me better that it should be undertaken by individual states than by the federal government. It seems reasonably certain that any attempt to embark upon a paternalized permit system would not succeed in this country, would open the door to considerable corruption, and would transfer the bootlegger from the rich man to the poor man as his field for operation.

Summarizing, my conclusion is that the Eighteenth Amendment cannot be effectively enforced without the active general support of public opinion and the law enforcement agencies of the states and cities of the nation; that such support does not now exist; and that I cannot find sufficient reason to believe that it can be obtained. I see no alternative but repeal of the Amendment.

I do not favor the theory of nullification, and so long as the Eighteenth Amendment is not repealed by constitutional methods, it seems to me to be the duty of Congress to make reasonable efforts to enforce it, however grave the doubts as to ultimate success. The additions to the field forces and equipment which are set out in detail in the Dennison-Sawyer study appear to be a moderate proposal in this direction and would involve no seriously disproportionate expense for the effort at prohibition enforcement as compared with moneys otherwise expended for governmental operation. I therefore concur in the recommendations that the number of prohibition agents, inspectors, storekeeper gaugers, warehousemen, investigators and special agents should be increased as recommended in that report with corresponding increases in the Customs Bureau and in the personnel and equipment of the Coast Guard. I do not think that any improvement in enforcement of the Eighteenth Amendment would result from an amendment of the National Prohibition Act so as to permit the manufacture of so-called light wines and beer. If the liquor so manufactured were not intoxicating, it would not satisfy the taste of the great majority of those who are now drinking intoxicating liquors, and if it were intoxicating, it could not be permitted without violation of the Constitution. Such legislation would moreover add to the difficulties of enforcement because if the permissible alcoholic content were increased, it would become harder to determine when the law had been violated. I agree that consistency requires that the National Prohibition Act should be amended so as to place cider and fruit juices upon the same basis as other intoxicating liquors; that independent denaturing plants should be prohibited; that there should be legislation adequate to eliminate the coverhouse problem in industrial alcohol; and that details with respect to the use of liquor for medicinal purposes should be provided for by regulation rather than by statute. These recommendations for immediate improvement in the machinery of enforcement represent, I think, a reasonable extension of federal efforts at enforcement which it is the duty of Congress to make so long as the Eighteenth Amendment remains in the Constitution.

Monte M. Lemann Washington, D.C., January 7, 1931.

Footnotes:

(1) In 1923, the number was seventy-six. See Annual Report Commissioner of Internal Revenue, page 33.

(2) This information was also furnished to the Commission by the Technical Division of the Bureau of Industrial Alcohol.

(3) Annual Report, Commissioner of Prohibition--1930, page 90.

(4) "The Control & Sale of Liquor" (a mimeographed report issued by the Dominion Bureau of Statistics in 1930), page 17.

(5) Report of Consul General Linnell to State Department, Nov. 21, 1930.

(6) The 1919 figures are taken from the U.S. Bureau of the Census, Biennial Census of Manufactures (1921), p. 89. The 1929 figures are taken from the Census Bureau, Department of Commerce, Census of Manufactures (1929). Release of July 7, 1930.

(7) "Possible Production of Illegal Liquor in the United States for the Fiscal Year Ending June 30, 1930," Bureau of Prohibition, Department of Justice, September, 1930.

(8) Subsequently reduced by 3,154,866 gallons deducted as the legal production of wine, leaving a corrected estimate of 115,165,434 gallons.

(9) The total quantity of intoxicating liquors estimated by the Bureau of Prohibition to be possibly in circulation from all sources in the year ending June 30, 1930, was approximately 69,820,218 proof gallons of spirits, 118,476,200 gallons of wine and 684,176,800 gallons of malt liquor. In the year ending June 30, 1917, the quantities of intoxicating liquors consumed were 167,740,325 proof gallons of spirits, 42,723,376 gallons of wine and liquors consumed were 167,740,325 proof gallons of spirits, 42,723,376 gallons of wine and 1,885,071,304 gallons of malt liquor. The figures last quoted are taken from the United States Statistical Abstract for 1922, page 697.

(10) Annual Report, Commissioner of Prohibition, 1930--page 111. The figures quoted do not include still worms or fermenters seized, the number of which was large.

(11) The authors of the study add, however, that small violators cannot be entirely neglected and that cooperation of local law enforcement officers is needed in dealing with them.

(12) A field study into the relationship between pleas of guilty and sentences would be necessary before any considered statement on this point could be made. An examination of the table in the Annual Report of the Commissioner of Prohibition, 1930, page 118, shows that the percentage of pleas of guilty is as high in some districts where substantial jail sentence are given in a large proportion of cases as in districts where jail sentences are rare and very short. It may be that in the first class of districts sentences are more severe where the defendant pleads not guilty and is convicted after trial so that an inducement to plead guilty is in fact offered.

(13) The figures are taken from the Annual Report, Commissioner of Prohibition, 1930, page 118; Annual Report, Attorney General of the United States, 1930, page 100.

(14) The report of the Conference of Senior Circuit Judges (Annual Report of the Attorney General of the United States, 1930, page 4) describes the congestion in the federal district courts as continuing to be a major problem and recommends the appointment of five additional district judges. The Conference Report refers to suggestions made for the creation of additional districts and requests the Attorney General to make a survey as to the feasibility of consolidations or changes in existing districts. The total number of criminal cases pending in the federal courts on June 30, was in 1929 31,153 and in 1930, 35,849. That the increase was due entirely to prohibition cases is indicated by the fact that the total number of such cases pending on June 30 increased from 18,385 in 1929 to 22,671 in 1930. The percentage of prosecutions pending under the Prohibition Act to total criminal prosecutions increased from 59.0 percent at June 30, 1929, to 63.2 percent at June 30, 1930. The number of prosecutions instituted under the National Prohibition Act increased only slightly from 56,786 in the fiscal year 1929 to 56,992 in the fiscal year 1930. But while the new prosecutions instituted thus increased only to the extent of 206, the cases pending at the end of the fiscal year increased by 4,286 from June 30, 1929, to June 30, 1930. Of this increase 3,040, according to a statement of the Department of Justice, were in the Southern District of New York, leaving a net increase of 1,246 for the rest of the country. A statement compiled by the Department of Justice shows that of the ninety-one federal districts in the United States, there were eleven districts each of which, either at the beginning or at the end of the fiscal year 1930, had more than 500 prohibition cases pending, and nine districts each of which had more than 300 such cases pending at one of such dates. Four of the eleven districts were included in those for which additional judges were recommended by the 1930 Conference of Senior Circuit Judges.

(15) Annual Report, Commissioner of Prohibition, 1928, page 95.

(16) Annual Report, Commissioner of Prohibition, 1929, page 109.

(17) Annual Report, Commissioner of Prohibition, 1930, page 118.

(18) Annual Report, Commissioner of Prohibition, 1928, page 99.

(19) Annual Report, Commissioner of Prohibition, 1929, page 113.

(20) Annual Report, Commissioner of Prohibition, 1930, page 118.

(21) Annual Report, Federal Penal and Correctional Institutions, 1929, page 61.

(22) Bureau of Prisons, Department of Justice, unpublished data released December, 1930.

(23) The above figures are taken from the Annual Reports of the Attorney General; the year 1930, page 315; the year 1929, following page 298; the year 1928, following page 292.

(24) Unpublished data released December, 1930.

(25) The suggestion that Congress might then elect to return to Prohibition does not seem to carry far. If Prohibition cannot succeed when given status as a fixed national policy by constitutional provision, it does not seem reasonable to hope that it could succeed when its continuance was open to attack every two years, or that the necessary organization for enforcement could be maintained and developed in the face of a constant doubt as to the permanency of the policy.

(26) "The Control and Sale of Liquor in Canada." Canada Department of Trade and Commerce, Dominion Bureau of Statistics, Ottawa, 1930, page 19.

(27) Annual Reports of Swedish Royal Liquor Control Board (Rusdryeksforsaljning).

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