The Wickersham Commission: The Wets Gather Support

The Wickersham Commission (1929-1931) (officially The National Commission on Law Observance and Enforcement) was the first federal review of law enforcement in the United States. While it consisted of several committees such as the causes and costs of crime, operating federal courts, and official corruption, the most famous task was to evaluate Prohibition, as it existed under the 18th Amendment and the Volstead Act. 

George Wickersham, circa 1930.  Courtesy Library of Congress.

President Herbert Hoover created The Wickersham Commission in 1929 in response to the public’s increasing concern about crime, a worry exacerbated by the Chicago gang wars—the Valentines Day Massacre had occurred on February 14, 1929.  While the commission had a larger focus, Hoover hoped to improve the notably ineffective enforcement of Prohibition.  Efforts at enforcement were clearly failing, abuses of authority by those responsible for enforcement were common, and the issue was starting to politically hurt the Republican Party. 

The commission was known popularly as the Wickersham Commission, after its chairperson, George W. Wickersham (1858-1936) a prominent New York lawyer and former U.S. attorney general under President Taft. The Wickersham Commission involved many of the nation’s most prominent experts on criminal justice, as both commission members and staff. Many of the people appointed by Hoover had served with the earlier state investigations. Commission members included Roscoe Pound, dean of Harvard Law School; Newton D. Baker, former Secretary of War under Woodrow Wilson; and Ada Comstock, President of Radcliffe College.

The commission met from 1929 through 1930 and issued its report in 1931.  There were numerous volumes in the final report, each dealt with a different subject, but it was the report on Prohibition Enforcement which was the most awaited, and the most remembered.  The end report has been described as “confused.” The members were divided as to whether Prohibition was working or how best to deal with the widespread disrespect for the law.  One wit in the New York World wrote his summary of the report…

When Hoover presented the report he noted that the commission “did not favor the repeal of the Eighteenth Amendment as a method of cure for the inherent abuses of the liquor traffic. I am in accord with this view.”  While accurate, Hoover’s remarks ignored some of the commission’s findings, especially that drinking had increased since 1920 and that prohibition was corrupting the legal and political systems.  These observations in fact matched the arguments made by anti-Prohibition forces such as the Association Against the Prohibition Amendment (AAPA).  The Wickersham Commission then issued a report whose findings, to over-simplify a bit, bolstered the arguments of the wets while its conclusions matched that of the drys.   The head of the AAPA noted “How could the recommendations could have been drawn from the facts is beyond me.”

The comments from the individual members added further confusion.  As historian David Kyvig noted, the individual statements made it clear that the report’s conclusions “represented a political compromise, a clear effort at least in some eyes, to avoid embarrassing the Hoover administration.”  (“Repealing National Prohibition”, 2d edition, p. 113).  A majority felt that the current law was unenforceable; nine noted that the public did not support the law and six wanted immediate change.  Two, including Wilson’s Secretary of War Newton Baker, advocated outright repeal of the 18th Amendment.  Only one member, Judge William Grubb, favored keeping Prohibition as it stood.  One member, Henry Anderson, traveled to Sweden to study that county’s government-run alcohol monopoly as a means to control consumption.  Sweden had nationalized the liquor industry in 1922 and limited each family to 1 liter a week (about a US quart).  Six other members and chairman Wickersham agreed with Anderson at least in part that some modification of the 18th Amendment allowing for government regulation of intoxicating beverages might be the best way to proceed.  (FYI: Sweden’s system using ration books was eliminated in 1955).

As might be expected, both wets and drys used the parts of the report that they felt best bolstered their argument.  However, the evidence provided in the report gave an official sanction to the position taken by the wets.  The drys were left in the position of arguing that the very government trying to enforce Prohibition, and one under a dry administration, had issued a report detailing how Prohibition was failing. 

Wets could also take some comfort from a Literary Digest poll conducted in 1930.  Almost 5 million votes were cast, representing almost 1/15th of the total US adult population. Compare the results of the 1930 survey to the same poll from 1922…

Wickersham Commission: Conclusions and Recommendations  1. The Commission is opposed to repeal of the Eighteenth Amendment. 2. The Commission is opposed to the restoration in any manner of the legalized saloon. 3. The Commission is opposed to the federal or state governments, as such, going into the liquor business 4. The Commission is opposed to the proposal to modify the National Prohibition Act so as to permit manufacture and sale of light wines or beer. 5. The Commission is of opinion that the cooperation of the states is an essential element in the enforcement of the Eighteenth Amendment and the National Prohibition Act throughout the territory of the United States; that the support of public opinion in the several states is necessary in order to insure such cooperation. 6. The Commission is of opinion that prior to the enactment of the Bureau of Prohibition Act, 1927; the agencies for enforcement were badly organized and inadequate; that subsequent to that enactment there has been continued improvement in organization and effort for enforcement. 7. The Commission is of opinion that there is yet no adequate observance or enforcement. 8. The Commission is of opinion that the present organization for enforcement is still inadequate. 9. The Commission is of opinion that the federal appropriations for enforcement of the Eighteenth Amendment should be substantially increased and that the vigorous and better organized efforts which have gone on since the Bureau of Prohibition Act, 1927, should be furthered by certain improvements in the statutes and in the organization, personnel, and equipment of enforcement, so as to give to enforcement the greatest practicable efficiency. 10. Some of the Commission were not convinced that Prohibition under the Eighteenth Amendment is unenforceable and believe that a further trial should be made with the help of the recommended improvements, and that if after such trial effective enforcement is not secured there should be a revision of the Amendment. Others of the Commission are convinced that it has been demonstrated that Prohibition under the Eighteenth Amendment is unenforceable and that the Amendment should be immediately revised, but recognizing that the process of amendment will require some time, they unite in the recommendations of Conclusion No. 9 for the improvement of the enforcement agencies. 11. All the Commission agree that if the Amendment is revised it should be made to read substantially as follows: Section 1. The Congress shall have power to regulate or to prohibit the manufacture, traffic in or transportation of intoxicating liquors within, the importation thereof into and the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes. 12. The recommendations referred to in conclusion Number 9 are: 1. Removal of the, causes of irritation and resentment on the part of the medical profession by:  (a) Doing away with the statutory fixing of the amount which may be prescribed and the number of prescriptions;  (b) Abolition of the requirement of specifying the ailment for which liquor is prescribed upon a blank to go into the public files;  (c) Leaving as much as possible to regulations rather than fixing details by statute. 2. Removal of the anomalous provisions in Section 29, National Prohibition Act, as to cider and fruit juices by making some uniform regulation for a fixed alcoholic content. 3. Increase of the number of agents, storekeeper-gaugers, prohibition investigators, and special agents; increase in the personnel of the Customs Bureau and in the equipment of all enforcement organizations. 4. Enactment of a statute authorizing regulations permitting access to the premises and records of wholesale and retail dealers so as to make it possible to trace products of specially denatured alcohol to the ultimate consumer. 5. Enactment of legislation to prohibit independent denaturing plants. 6. The Commission is opposed to legislation allowing more latitude for federal searches and seizures. 7. The Commission renews the recommendation contained in its previous reports for codification of the National Prohibition Act and the acts supplemental to and in amendment thereof. 8. The Commission renews its recommendation of legislation for making procedure in the so-called padlock injunction cases more effective. 9. The Commission recommends legislation providing a mode of prosecuting petty offenses in the federal courts and modifying the Increased Penalties Act of 1929, as set forth in the Chairman's letter to the Attorney General dated May 23, 1930, H. R. Rep. 1699. There are differences of view among the members of the Commission as to certain of the conclusions stated and as to some matters included in or omitted from this report. The report is signed subject to individual reservation of the right to express these individual views in separate or supplemental reports to be annexed hereto. Geo W. Wickersham, Chairman, Henry W. Anderson, Newton D. Baker Ada L. Comstock, William I. Grubbi William S. Kenyon, Frank J. Loesch, Paul J. Mccormick, Kenneth Macintosh Roscoe Pound. (Note: Monte M. Lemann refused to sign).