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 liquo
r 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.
Last Call: The Rise and Fall of Prohibition Page 34