V PLANS WHICH HAVE BEEN PROPOSED TOWARD MORE EFFECTIVE ENFORCEMENT
A very large number of plans for more effective enforcement of the law as it stands have been proposed in books, pamphlets, or articles, have been put before us by witnesses, or have been suggested to us in letters. These plans may be grouped conveniently under eight heads.
1 PARTITION OF THE FIELD OF ENFORCEMENT BETWEEN NATION AND STATE
Many plans provide for legislation dividing the field between the federal government and the states. Usually they contemplate national abdication of part of the jurisdiction provided by the Eighteenth Amendment, leaving that part to the states, perhaps with the help of the federal government where prohibition exists by state law. When put as a general proposition, this seems plausible. It may be said that things which are naturally of federal cognizance, things which were of federal cognizance under our traditional pre-prohibition polity, are to be retained by the federal government; while those things which prior to the Eighteenth Amendment belonged to the states are to be left to them. But this policy is not easy of execution when it comes to details. The plans vary significantly. The subjects to be kept within federal jurisdiction are said to be importations from outside the United States, interstate transportation, illegal manufacture or diversion on a large scale, interstate organizations of illicit traffic or conspiracies to violate the law, and sometimes, in addition, open saloons. With respect to importation from abroad, some would have the federal government deal with all such importation while others would confine federal activity to importation into states having prohibition laws. Likewise, as to interstate transportation, some would have the federal government retain jurisdiction over it as a whole, while some would confine it to transportation over interstate highways and others to transportation (whether general or over interstate highways) into states having state prohibition laws.
As to illegal manufacture and diversion, some would confine federal activity to large scale operations, some to commercial operations, and some to such things when carried on in states having state prohibition laws. To such programs, some add a federal jurisdiction over conspiracies, and others add federal repression of open saloons, although the latter is not a subject of natural or traditional federal cognizance. The present program of the Bureau of Prohibition seems to be to confine federal activity to importation, inter-state commercial transportation, and commercial manufacture and diversion.
It will be seen that some of the plans are framed with a view to more effective enforcement by doing away with overlapping activities, while others are devised with a view to a policy of federal hands-off in states where there is disinclination or hostility towards enforcement.
From either standpoint, there are serious objections to this type of plan. It gives up the policy of concurrent jurisdiction expressly laid down in the Eighteenth Amendment and adopts a fundamentally different system. This is legally possible. But if the amendment is to be modified, we think that should be done directly and avowedly rather than by indirection.
Secondly, it gives up in effect the policy of the Eighteenth Amendment in whole or in part as to all states which decline to act or are indifferent. If this is to be done, we think it ought to be done directly under warrant to the Constitution and not by way of nullification thereof.
Thirdly, it gives up the announced policy of the National Prohibition Act as to any state which chooses to do nothing, or little or nothing, with respect to that part of the program of the Eighteenth Amendment abdicated by the federal government. If it is sought to guard this abdication by retaining federal jurisdiction to the extent of federal repression of open saloons, it must be observed that such saloons are not within the natural or traditional field of federal action. Yet the circumstance that it is felt necessary to guard against the return of saloons in states where the power given up by the federal government remains unexercised, shows the recognized need of a federal power beyond what existed before the amendment.
A part from these considerations, such partitions are hardly practicable. There is grave difficulty in defining large-scale manufacture. There is difficulty in drawing the line as to what is commercial manufacture and transportation. It will be very difficult to define the organizations and conspiracies to be dealt with by 'federal agencies. For example, is jurisdiction to be determined by the composition or by the operations of the organization I Such a partition, if made by law, is likely to involve jurisdictional difficulties of a sort that always interfere with effective enforcement of law. It will be hard to eliminate overlapping enforcement without raising jurisdictional questions, and, except as a means of local nullification, the partition would not be worth while unless it eliminated such overlappings. This type of plan carries with it the same difficulties which are encountered in securing state cooperation under the existing system.
2 BETTER ORGANIZATION OF ENFORCING AGENCIES
Most of the plans of this type antedate the Prohibition Reorganization Act of 1930 and the better organization which now obtains. A few call for special consideration.
It has been urged that coordination between the several independent investigating agencies of the federal government could be brought about by designation of a special secretary to the President charged with that task. This is an administrative measure not requiring legislation, and comes to a matter of executive judgment as to the relative weight to be given to the enforcement of prohibition in the whole process of government. To add to the direct burdens of the President and specialize executive attention upon the administration of one law is obviously unwise.
A unified federal police has also been urged. From the standpoint of a highly centralized federal enforcement of prohibition, reaching into the details of violation and seizures in every part of the landl this might be more effective. But Americans have a strong and justified traditional antipathy to over-centralization. Any considerable federal policing is wholly at variance with the general spirit of our Constitution. Indeed, the Constitution permits it at all only as an incident of certain granted powers. Moreover, the political possibilities of such a force, reaching into every community are disquieting.
3 MORE ADEQUATE FORCE AND EQUIPMENT
There is substantial agreement among all who have looked into the subject that the federal prohibition force is very much too small in number for the work it has to do. Estimates as to the number required to make it reasonably effective vary greatly.
Experienced prohibition administrators (prior to the transfer) are in agreement as to the need of a very large number of additional agents and investigators. One of them, referring to a large city in a state having a state law, which the state does not enforce, considered that for reasonable enforcement in that one locality, he would need 50 agents and 10 investigators, and that this "would not make it absolutely dry ". Another, referring to a large city in a state having no state law, considered that reasonable enforcement in that city would require 200 agents. Also the chief of the state police, in a state having a state law, considers that to bring about reasonable enforcement in his state, there should be 1,000 federal prohibition agents and 200 more state police in that jurisdiction alone.
In contrast with these views of those immediately in contact with enforcement in the field, the authorities at,Washington have consistently maintained that a much smaller increase in number would suffice. The Prohibition Administrator is asking for 500 more prohibition agents, about one-third more than the present force. His reason for not calling for more, namely, that 500 additional are as many as he can hope to train adequately within the term of the appropriation, has much force. But it should be remarked that his figure assumes practical federal abdication of an important part of federal jurisdiction under the amendment and federal acquiescence in state nullification. Moreover, the slow building up of an adequate and well-trained force presupposes a considerable further period of experiment during which the deficiencies of the present situation will continue.
Between these extremes our conclusion is that there should be 60 per cent more agents and 60 per cent more storekeeper-gaugers, that the number of prohibition investigators and special agents should be doubled, that there should be a proportionate increase in the Customs Bureau, and in the equipment of all enforcement organizations, and that the number of assistant district attorneys should be increased.
4. IMPROVEMENTS IN THE STATUTES AND REGULATIONS
A number of plans or suggestions submitted to us have to do with improvements in the statutes and regulations. It has been urged upon us by those charged with enforcing prohibition in many parts of the country that the several statutes governing the subject are much in need of being put in order, revised and simplified. This does not mean that all of the 25 or more statutes bearing on the enforcement of national prohibition, enacted at various times during forty years, many of them much antedating the Eighteenth Amendment, are to be taken out of their setting in the United States Code and put in a special prohibition code to the disorganization of the law on the subjects with which they had to do primarily. But, as they stand, they are in need of coordination and adjustment to each other. More than this, however, there is real need of revising and digesting the National Prohibition Act, and the acts supplemental to and in amendment thereof, with a view of putting if in a simpler, better ordered, and more workable condition. The original statute has been amended or supplemented by the Willis-Campbell Act (1921), the Act to create the Bureau of Prohibition (1927), the Increased Penalties Act (Jones Law, 1929), the Storekeeper-Gauger Act (1929), and the Prohibition Reorganization Act (1930). These acts have been superposed one upon another, and all upon the original act, in such a way that it is difficult at times to make out what is the effect as to particular details. The subject is discussed more fully in our report supplemental to the preliminary report submitted to the President on November 21, 1929 (71st Congress, 2nd Session, H. R. Doc. No. 252, p. 13). It is enough to say that the Bureau of Prohibition (before the transfer) was at work on the redrawing of the statute to remedy this situation. We think this work ought to be resumed, and that the whole series of statutes, with such amendments as may be called for towards better enforcement, should be put into a single, thoroughly revised statute.
Some have urged upon us the importance of uniform state laws. Undoubtedly the state laws are very diverse. But a uniform state law in aid of the National Prohibition Act could hardly be _procured to be enacted in a number of the most populous states. Nor does it seem feasible as to the remaining states. Local conditions are so divergent, and local public opinion differs so greatly in different parts of the land, that it would take a long time to work out a satisfactory uniform state law and still longer to procure general enactment of it. The relative failure of attempts to procure enactment in the several states of statutes copying the National Prohibition Act with such adaptations as state constitutions might require, is a sufficient testimony on this point. It is doubtful if the advantages of a movement for uniform state laws would be enough to justify the effort.
Many have urged different proposals for dealing with so-called cover-houses. The statute is not wholly clear and it has been urged with some force that the matter can be dealt with by regulations without the aid of legislation. But this is doubtful and we cannot say that the courts will uphold effective regulations under the statute as it stands. The matter is too important to rest upon interpretation of the present statutory provisions involving so many questions. The federal district courts would be very likely to differ, and it 'night be years before an authoritative interpretation could be had from the highest federal court. We conceive, therefore, that legislation is expedient.
Four types of statute have been proposed. One type provides for inspection of premises and access to records of wholesale and retail dealers, with a view to making it possible to trace products of specially denatured alcohol to the ultimate consumer. Another type provides a stricter system of supervision of the use of specially denatured alcohol through requiring bonds and detailed reports. A third type extends the scope of proposed legislation to all industrial alcohol, completely denatured as well as specially denatured. A fourth seeks to meet the cover-house situation by eliminating certain exceptions in the National Prohibition Act and thus extending the powers of federal prohibition authorities to all products of denatured alcohol.
A statute of the first type seems most in accord with a policy of due balance between the needs of industry and business and the demands of prohibition. There seems little to be gained by including all denatured alcohol, and the irritation and resentment caused by a system of bonds and detailed reports imposed on wholesale and retail dealers in every-day articles, involved in the other types, will outweigh the gain.
More latitude for searches and seizures has been urged by many. No doubt the difficulties in this connection have had much to do with the abandonment of federal activity against home making of wine and beer. Also the limitations upon search and seizure have undoubtedly hampered investigators and special agents in every connection. But apart from constitutional questions, too much resentment and irritation is likely to be provoked by changes which would give to enforcement of national prohibition greater latitude than is permitted with respect to other laws.
We do not think it advisable to alter the federal law with respect to search and seizure, assuming that it would be possible.
Imposition of penalties upon purchase of illicit liquor has been urged from many quarters and a bill to that end is now pending. The effect of such legislation is a matter of opinion. Logically it is called for to carry out the policy of section 3 of the National Prohibition Act. The arguments against it are practical, namely, that it would be likely to add greatly to the volume of petty prosecutions, to embarrass the detection of violations of the statute, and to encourage activities by informers, which have been a source of irritation. A majority of the commission are of the opinion that it would increase rather than reduce, the difficulties of enforcement.
Several plans have been proposed for rewarding, those who detect conspiracies or large-scale violations, or for sharing penalties and fines between federal and state governments, or with the municipality where municipal officers participate in the search or seizure. It has been argued that such measures will stimulate cooperation of state and local enforcement agents with those of the federal government. Division of penalties is something which has been tried in many connections throughout the history of penal legislation and its effects have almost uniformly been bad. True there is a precedent in the provision for giving a percentage to informers under Section 533, Tit. 19, U. S. Code. But the scope of that section is very limited. This device has been tried in the liquor legislation of some of the states with the bad results which have usually attended it. We are satisfied that it would be a mistake to extend a division of penalties as a feature of federal enforcement of prohibition.
Many suggestions have been made as to improvements in the regulations under the National Prohibition Act. The regulations must be adapted from time to time to the changed expedients of lawbreakers and new developments in industry and busines. These can seldom be anticipated. Experience must show where and what changes are needed. In the nature of the case, permanent recommendations can only be with respect to legislation. Suggestions as to regulations would soon be out of date and would achieve little.
In our report supplemental to the preliminary report submitted to the President on November 21, 1929 (71st Congress, 2nd Session, H. R. Doc. No. 252, pp. 9, 14), we recommended legislation for making the procedure in so-called padlock injunctions more effective. The details need not be repeated. The need of such legislation has been recognized by judges who have sat in injunction proceedings. We renew the recommendation.
5 IMPROVEMENTS IN COURT ORGANIZATION AND PROCEDURE
Relief of congestion in many of the federal district courts is considered in our preliminary report and reports supplemental thereto (71st Congress, 2d Session, H. R. Doc. 252, pp. 9 to 12, 17 to 25) and in the letter of the Chairman to the Attorney General dated May 23, 1930 (H. R. Rep. 1699). Bills to carry out our recommendations (as modified to meet certain proposed changes in the Increased Penalties Act of 1920) are now pending and have passed the House of Representatives. One of them has also passed the Senate.
The reasons we have given heretofore need not be repeated. It should be said, however, that questions of constitutionality which were much discussed in connection with our preliminary report seem to be set at rest by the decisive pronouncement of the Supreme Court of the United States in District of Columbia v. Colts, decided November 24, 1930. In the opinion in that case the court points out that at common law "petty offenses might be proceeded against summarily before a magistrate sitting without a jury "; also "that there may be many offenses called 'petty offenses' which do not rise to the degree of crimes within the meaning of Article 3 and in respect of which Congress may dispense with a jury trial." In the Colts case the offense charged was one indictable at common law and was not malum prohibitum. The court points out that it was in its very nature malum in se. Obviously, offenses with respect to which legislation is proposed were not common law offenses and are only male prohibita.
Despite the increase in the number of federal judges at the last session of Congress, the Judicial Conference of 1930 reports that "congestion in the federal court continues to be a major problem," and recommends a further increase in the number of district judges. The last report of the Attorney General states that "one of the serious administrative problems has been and still is congestion in some of the federal district courts, particularly in large, cosmopolitan districts." The Attorney General adds: "This difficulty has not yet been solved." We, therefore, renew our recommendations.
Two other suggestions from different sources deserve to be mentioned. It has been urged that regular conferences of judges, district attorneys and marshals should had with and under the auspices of the Attorney General. We think such a suggestion gravely misconceives the relation of the federal judges to the Department of Justice. The judges are a part of the judicial department of the government and are in no sense officers of the Department of Justice, which is a branch of the executive department. The independence of the judiciary is something fundamental in our polity. Conferences of judges, prosecutors and administrative officers with respect to pending cases, or cases soon to be pending, are opposed to the settled principles of our Constitution.
It has been suggested also that the district attorneys participate more largely in the work of the enforcement officers. Such suggestions overlook the bad effects of the quest for publicity upon prosecutions, as disclosed in recent surveys of criminal justice, and the distinction between criminal investigation and criminal prosecution. The two activities should be fully coordinated and should go on with the most complete harmony, but they ought to be kept distinct.
6 DIVORCE OF ENFORCEMENT FROM POLITICS
This is urged in many forms in a great variety of proposals submitted to us. Much of what has been written assumes the conditions which existed before recent reorganizations and improvements. Much else which has been written on the subject is in the way of counsels of perfection. No one has worked out specific plans to this end, and, so far as federal activities go, we see nothing to recommend beyond the changes in selection, recruiting, organization and training of the personnel of enforcement which have been going on for some time.
7 MORE CIVIC ACTIVITY: COOPERATION WITH NON-LEGAL AND CIVIC ORGANIZATIONS
Numerous arguments for stimulating and plans for developing more organized civic activity directed toward observance of the National Prohibition Act and cooperation with non-legal and civic organizations toward that end have been brought to our notice. As to organized civic activity so far as the conduct of the courts and of prosecutions are concerned, such things are not without bad possibilities except as directed to the whole field of law and order and carried on with proper regard to the freedom of judicial action required by a due administration of justice. We do not see anything to suggest here with respect to prohibition as distinguished from the law in general. As to cooperation, in more than one place cooperation with railroads, with professional associations, with industrial corporations, with trade associations, and business organizations, ^ with associations of real estate agents, with hotel associations, with service clubs, with local societies, and with other important nongovernmental agencies, has been arranged and has been bringing about good results. Such things are likely to come about with increasing effectiveness under the present organization of prohibition enforcement. We see nothing specially to suggest here.
8 EDUCATION OF PUBLIC OPINION
It has been urged from many sides that the main reliance must be put on a process of educating public opinion toward observance and enforcement of national prohibition. There can be no doubt of the importance of this if enforcement is to be effective. But mere ; propaganda to that end will accomplish little if the bad features of the present situation, which operate to foster adverse public ; opinion, are not remedied. So long as they continue unabated they k will largely counteract educational efforts, however well organized and conducted. Education must go along with elimination of these bad features.
We do not think any of the plans for coercing state or local enforcement or cooperation by publishing the details of violations or giving publicity to local examples of inaction or indifferent action are applicable to the country as a whole or may be made practically useful as a general means toward more effective enforcement. This subject and the subject of increased civic activity are hardly to be separated from the question of inducing a better observance of law generally.