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Sunday, September 01, 2013

Seeking views on important under-appreciated lessons from US history with alcohol Prohibition

Hoping to generate many more comments in reaction to this recent post at my new Marijuana Law, Policy and Reform, and because I consider the PrawfBlawg readership to be especially insightful and astute, I am reprinting below parts of the above-referenced post:

As I explained via this prior PrawfBlawg post a few month ago, I thought it wise to devote at least a few early weeks in my Fall 2013 seminar on "Marijuana Law, Policy & Reform" to a review of the legal and social history of alcohol Prohibition.   I am doing so because (1) public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco, and (2) there are many legal and social themes and lessons from the US temperance movement and the years during and surrounding the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.

I have kicked of my class activites by urging all my seminar students to watch with me the full wonderful 2011 Ken Burns' PBS documentary on Prohibition, as well as cruise around this terrific website from the History Department at Ohio State (which includes this especially interesting account with visuals concerning campaigns by the "drys" in Ohio).  I also have urged students to read parts of the terrific 1970 article by Richard Bonnie & Whitebread, Forbidden Fruit and the Tree of Knowledge - An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 971 (1970) (available here)  (Hat tip to Prof Orin Kerr and others).

There are, of course, lots of important obvious lessons to take away from US history with temperance movements and alcohol Prohibition, and I suspect my students and others are quick to take away from the US history here that we should seek to avoid governmental cures that are worse than the disease and also avoid too much constitutional experimentation.  But, as the title of this post suggests, I am eager to explore  what might be deemed important under-appreciated (or at least under-discussed) lessons from not just Prohibition itself, but also from the broader alcohol temperance movements that stretch back many centuries and arguably still have some enduring echoes and impacts today.

A few related prior posts (here and eslewhere):

Posted by Douglas A. Berman on September 1, 2013 at 12:27 PM in Law and Politics | Permalink

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I thought one of the most interesting aspects of the Daniel Okrent prohibition book was his story on the interaction between tax policy and temperance. The temperance movement provided key support for the income tax because it provided a way to replace the excise tax revenue that would be lost due to Prohibition. It has a huge resonance with modern debates about marijuana legalization, as well, as the potential revenue gain from taxing legal drugs play a pretty central role in pro-legalization campaigns...

Posted by: D.Schleicher | Sep 1, 2013 1:52:58 PM

One reason prohibition failed, or never got off the ground, was the failure of the federal or state governments to devote any significant resources to the Prohibition Bureau or state law enforcement. You can contrast this with the DEA's massive budget (as well as the efforts of other law enforcement agencies), the professional nature of the DOJ, significant state and local resources. All this has created powerful, entrenched interests within government that will fight a relaxation of the war on drugs.

Further reading might look at the proliferation of private prisons and prison services companies, the occasional case (like in PA) where a judge is caught getting kickbacks from juvenile treatment facilities, the importance of law enforcement unions in state and local politics, the well-done recent New Yorker article on civil forfeiture statutes, and the increased militarization of police. I wonder how willing the Chicago PD would have been to crack down on Al Capone if they were told they could keep the money made by selling any house or vehicle his organization used to store, move, or sell liquor.

To put it another way, the money during prohibition was in the black market. There's a lot of "legitimate" money to be made funding and continuing the war on drugs. And although marijuana prohibition does enjoy significant public support, it was never driven by public outrage the way prohibition was. I'm sure your students will be interested to learn that prohibition came about after years of sustained advocacy by grassroots organizations. Marijuana prohibition was driven by individuals within the government.

Posted by: BoredJD | Sep 1, 2013 4:36:44 PM

Like D. Schleicher, I thought the Okrent book was fascinating -- the connections between Prohibition and other constitutional issues (suffrage, federalism, search-and-seizure, progressivism, anti-Catholicism, etc., etc.) really are underappreciated by students. This class sounds great!

Posted by: Rick Garnett | Sep 3, 2013 2:55:03 PM

Doug,

Your reference to “government cures that are worse than the disease” links to an aspect of Prohibition that has been receiving renewed attention amidst the medical marijuana movement. Although Prohibition was sometimes framed as a public health measure, a core group of U.S. physicians--people widely regarded as possessing expertise and authority over health matters--vocally opposed this policy prescription as an encroachment on their professional discretion. A short overview can be found here:

http://rosemelnickmuseum.wordpress.com/2010/04/07/medicinal-alcohol-and-prohibition/

Accounts of the “medicinal alcohol movement” by medical historians have stressed its failure to gain traction in court and the political implications of this experience for an organizing profession. But, given the rising cultural authority of biomedical expertise and the shared social milieu of doctors and policymakers in the early 20th century, we should not discount the possibility that this movement influenced public opinion and law in less transparently measurable ways.

Posted by: Jed Adam Gross | Sep 3, 2013 5:12:04 PM

Thanks to all for the comments, and keep them coming. One reason I am spending lots of time in my marijuana class on the Prohibition story is because of all the constitutional/political issues raised (and often forgotten) by legal developments in this period. Indeed, I wish I had more time to explore this period in legal history, but I have to move on to 21st century developments shortly.

That said, I am especially grateful for Jed's comment and link because I see the relationship(s) between marijuana reform and public health debates to be uniquely important going forward (especially at this "Obamacare" moment when doctors and other public health advocates may have lots of other topics vying for their attention). Indeed, the considerable buzz garnered by Dr. Sanjay Gupta's recent "conversion" on medical marijuana provides an interesting reminder of how members of the medical profession can and will play a role in on-going reform discussions.

Jed: I would love to read some of the accounts of the “medicinal alcohol movement” by medical historians if you might be able to share additional references or links to other discussions of these interesting issues.

Posted by: Doug B. | Sep 3, 2013 5:26:35 PM

The key recent article is Jacob Appel’s “Doctors are Not Bootleggers” in the Bulletin of the History of Medicine (2008), which ties this earlier episode to Gonzales v. Raich (2005). This account struck me as interesting and well-researched, although I don’t completely agree with the author’s analysis of Raich.

While federal controlled substances regulations no doubt altered the relationship between state-licensed professionals and the federal government, these interventions did not erase the basic distinction between mainstream, state-licensed medical practice and other activities, including "self medication." Indeed, food & drug law and Medicare law blossomed in the twentieth century as discrete, specialized fields. Organized medicine’s sharply-defined contours help to explain why the medical marijuana phenomenon seems liminal and unstable, apart from federalism issues. Orthodox professionals are increasingly speaking to marijuana’s therapeutic potential, yet the dispensation architecture lacks the familiar regulatory hallmarks of modern medical practice—enforcement of good manufacturing practices, malpractice litigation, etc. (David Cronin, a liver surgeon at Wisconsin, is known to give a cutting talk on these asymmetries.)

If the liberalization of marijuana laws continues to focus on medicinal uses, and these continue to gain broad respectability, practitioners in good community standing will hardly have added impetus to assert that "Physicians are not Bootleggers." But we might hear more voices insisting that street dealers are not doctors. And for that, we might take a fresh look at the voluminous literature on professional licensure and "monopolization."

(Doug, I’d be happy to continue this conversation by email.)

Posted by: Jed G. | Sep 4, 2013 1:28:23 PM

Another under appreciated lesson from Prohibition is the impact that it had on criminal procedure, particularly the backlash from the public against broad police discretion which led to actual regulation of police forces. Wesley Oliver has a nice piece on the "Neglected History of Criminal Procedure" http://pegasus.rutgers.edu/~review/vol62n2/Oliver_vol62n2.pdf
which explores this in some detail, as well as a piece on how the probable cause standard developed during prohibition http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1341349.

Posted by: anon | Sep 4, 2013 11:59:54 PM

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