PART I
To start, unless they were prosecuted after 1929 they probably wouldn't have been there in the first place.
Let's go back a decade to explain why this was the case. The Volstead Act - the legislation providing the nominal teeth to provide a method to enforce Prohibition on the federal level - had a structural weakness that essentially doomed it from the start even if everything else surrounding Prohibition had worked: it required jury trials.
To say this overwhelmed the Federal Court system and made punishment under Volstead laughable doesn't even come close. From Daniel Okrent:
"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...Mabel Willebrandt [one of the most aggressive prosecutors of Prohibition] 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 liquor 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.
Or as one district judge in New York put it to a Prohibition violator in the mid 1920s, "You have been brought before me twelve times in twelve months for violations of the Volstead Act. What do you have to say?" His reply: "Your Honor, I can't help it if you're not promoted."
This led to what was essentially chaos in the court system for a decade, especially since Dry advocates used conviction numbers as a brute force yardstick to measure prosecutorial effectiveness; the Southern District US attorney in New York was expected to clear 10,000 cases annually.
"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...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."
What this led to in turn was a shortcut: the vast majority of cases - which were misdemeanors anyway - were plea bargained out for a guilty verdict and a nominal fine, and if you were crazy enough to actually bring something to a jury trial, then as one prosecutor put it, "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." In addition given the terrible training and miniscule expenditure on Prohibition Agents - presuming they weren't already felons when they signed up, where by 1930 almost 10% had been fired for lying on their applications for previous convictions, which doesn't even begin to cover those taking bribes - the police work was generally terrible and the courts often had field days with fourth amendment violations, and had legal implications that still exist today. Last but not least, at the beginning of the 1920s there were a grand total of three federal prisons throughout the country - so where exactly were you going to put all the miscreants?
So this led to such scenes as "thousands of Volstead violators were...(delivered) by the wagonful to the badly degraded Federal Court in downtown Manhattan. This led the (US attorney for the region) to concoct an opportunity that quickly became known as “Bargain Day.” Publicly promising to request light fines in exchange for guilty pleas, he invited defendants to the Old Post Office Building south of City Hall, where his staff, working with two cooperative federal judges, could process five hundred cases at a time and clear up the backlog." While the fines were often small, usually ranging between $5-$250 (the former for consumers, the latter viewed as a cost of doing business by the providers), the numbers added up: in the Northern District of New York, in 1925 and 1926 a single judge assessed $2.5 million in fines for Volstead violations, or the better part of $40 million today. Incidentally, this is one reason my second favorite scene of Boardwalk Empire (the first being Nucky Thompson declaring 'that imbicile is going to be the next President of the United States!' when he hears Harding has received the nomination) is the one in which the Mabel Willebrand-inspired prosecutor is shocked to discover she finally has a shot at Nucky in court and attempts to throw the book at him - and the exhausted judge working at 2 am looks for 10 seconds at the evidence he's actually arrested for and fines him something like $5. While the scene is of course entirely fictional, it's also a decently accurate representation of the general futility of Volstead era prosecutions; in fact, one of the few judges who decided to actually try to enforce the law as intended and who had used sightseeing buses to round up prisoners actually went insane after two years of doing so and ended up killing himself.
But that was just in Federal Court.
One of the nuttier aspects of the Eighteenth Amendment was that it allowed concurrent jurisdiction between the Feds and the States with the expectation by the Drys that State governments would step up. As you'd expect, this didn't quite work out uniformly. From Okrent again:
The peculiar second clause of the Eighteenth Amendment, assigning “concurrent” enforcement power to the federal government and to the states, mandated (or at least encouraged) armies of cops across the nation to stand shoulder to shoulder in the booze wars. The relative strength of the Anti-Saloon League in various parts of the country could be measured by the proliferation of state laws designed to be “concurrent” with the federal strictures. Anyone arrested for insobriety in Vermont was subject to a mandatory jail sentence if he failed to name the person from whom he acquired his liquor. At one point Indiana vested train conductors and bus drivers with the authority to arrest passengers carrying alcohol and made it illegal for retailers to put flasks or cocktail shakers in their shop windows. Mississippi decreed debts related to the acquisition of intoxicating beverages uncollectible. Iowa banned the sale of Sterno, from which alcohol could be extracted by filtering it through a rag or, among drunks with better table manners, through a loaf of bread...only eighteen states bothered to appropriate as much as a dollar for enforcement. In some jurisdictions this reflected a distaste for the whole business; New York repealed its state enforcement code in 1923, and Maryland never even bothered to enact one.
One great example of just how even true believers were restricted comes from Pennsylvania, where Gifford Pinchot - the legendary founder of the Park Service - got himself elected Governor on a Dry Platform.
In his first month in office he turned the state police into a commando army. A single week saw raids on illegal liquor operations in eighteen counties. Reminding Republican legislators that he was now head of the party, that he had led them to victory at the top of the ticket in November, and that they had pledged their support to his legislative program, Pinchot got all the laws he wanted. Swollen with the pride of a triumphalist, gleaming with the righteousness of a reformer, Pinchot announced that he had achieved his legislative success without making a single promise in exchange for a vote. “This is an unbought victory,” he proclaimed, “and ten times as valuable on that account.” Unbought, perhaps, but unfunded as well. After Pinchot’s glorious moment had passed, the legislators who had gone along with his program stiffened. It was one thing for the Pennsylvania legislature—any legislature, really—to give militant drys the laws they wanted, but quite another to provide the funds necessary for their enforcement. As a result, the legislators decided that the total appropriation for Pinchot’s ambitious program should amount to precisely...zero.
Ok, trying this again with a little more detail because I think my first answer was removed.
The 21st Amendment, passed in December 1933, repealed the 18th Amendment, which mandated nationwide prohibition. By February 1934, all pending cases dealing with prohibition violations were ordered to be wiped from Federal Court dockets. There were roughly 9000 such cases at the time. The Supreme Court ruled that the repeal of the 18th Amendment meant courts could not sentence or inflict penalties based on that amendment in pending cases (U.S. v. Chambers, 1934).
No general rule was established regarding pardons or commutations of sentences for those who broke dry laws before the repeal of Prohibition, however. U.S. Attorney General Homer Cummings recommended leniency for casual offenders, but not those who made careers out of illegal liquor practices.
Part of this lack of forgiveness for larger-scale liquor violations (involving bootleggers, rum runners and the like) stems from revenue violations. The 21st amendment repealed the 18th, but it did not override specific tax and permit violations incurred in the process of illegally distributing liquor. In 1934, for example, the Justice and Treasury departments expressed a desire to "vigorously to prosecute all forms of liquor-tax evasion and other frauds upon the revenue which have resulted in a tremendous loss to the Government."
At a state level, there are examples of larger-scale pardons granted for dry law violators. A New York Times article from Feb. 26, 1933 describes Indiana Governor Paul V. McNutt's decision to repeal the state-level prohibition enforcement law before Prohibition was ended at a federal level. McNutt announced that he planned to pardon or parole roughly 400 people who were serving sentences for liquor charges at the time. "If these men were kept in prison after the liquor law is repealed, they would be political prisoners," McNutt said. He only granted amnesty to people charged with transporting, possessing, or selling liquor. He did not include people who were incarcerated for public intoxication or driving under the influence -- these charges would remain illegal even after prohibition ended.
Similarly, in 1932 California Governor James Rolph announced plans to pardon the roughly 1000 liquor law offenders held in California prisons following the state's decision to repeal the California liquor prohibition law.
In summary, pardons depended on the specific nature of the crime, especially when it came to prosecution at a Federal level. There are certainly instances of retroactive pardons, some on a large scale.
Sources:
"INDIANA WILL FREE LIQUOR PRISONERS." New York Times, Feb 26, 1933
"Annual Report of the Attorney General of the United States for the fiscal year 1934." Department of Justice, Jan 5, 1935.
"GOV ROLPH TO FREE DRY ACT VIOLATORS." The Baltimore Sun, Nov 5, 1932.
"BIG OFFENDERS NOT TO GAIN BY DRY LAW EDICT." The Baltimore Sun, Feb 6, 1934.
This is a boring answer, unfortunately. Prohibition's enforcement was relatively unlikely to incarcerate people. America was not yet used to arresting large groups of people or detaining them for long periods of time. This meant the number of people in jail for violating prohibition in 1933 was tiny. (So was the general incarcerated population, really.) The most generous count of people serving long term sentences for violating prohibition in 1933 is a few hundred people. And almost all of those people were serving time for what we'd call aggravated crimes. They'd been smuggling rum and opened fire on the police and killed an officer, for example. Their clemency was not a major goal of the legalization movement.
Prohibition enforcement, paradoxically, was lethargic in the courts even where it was vigorous on the street. And it wasn't always vigorous on the street. Even where it was, the norm was that large amounts of alcohol was seized and destroyed. Only a percentage of those led to arrests and a small percentage of those led to convictions. Most of the criminals were simply released or plead out. New York is fairly typical: of something like thirty thousand raids, about seven thousand led to arrests. Of those seven thousand raids leading to arrests, only seventeen led to convictions. This amounted to less than ten convictions per year and not all those convicted actually went to jail. The proportion was similar in most other major cities. And enforcement outside of the major cities was weak to non-existent with a few exceptions.
And it's not as if people weren't imbibing. To return to New York, there were at least twenty five thousand speakeasies and maybe as many as a hundred thousand. There were as many as hundred thousand permanent establishments engaged in lawbreaking. That doesn't include people imbibing at home, just professional establishments. And yet you had less than ten people a year being convicted and less than that being incarcerated. Even multiplied across the whole United States this was a small phenomenon.
The main mechanism of enforcement was the seizure and destruction of property by the police. They would bust up a speakeasy or dump the barrels of alcohol into the river. They'd also sometimes beat the people involved. But even when the club was full of German or Catholic immigrants or Jews or African Americans (all disproportionately targeted groups) it rarely led to long term incarceration. In a minority of raids they actually let the criminals simply walk away, often after some form of intimidation. Even when arrested they were usually not charged, or plead out, and released.
And these were the most fervent police enforcers. In New York, the police force had a large Irish Catholic contingent whose sympathies were wet. They often studiously ignored alcohol use. In fact, this appears to be the majority of police everywhere, such that the Federal government increasingly sought to coerce local cooperation from unsympathetic local policemen. (This attempt at coercion never quite seemed to reach Washington or investigating their wealthy friends, naturally. It mostly focused on groups like Germans, Catholics, Jews, and African Americans. Jews, Catholics, and Germans were particularly associated with drunkenness. And African Americans were just generally stereotyped as lazy and given to vice.)
More broadly, this question is projecting a modern situation into the past. Mass incarceration and its attendant social ills simply didn't exist for most of the 20th century, let alone the 19th century.
The US prison population has been slightly rising over time (roughly growing with population). But it roughly quintupled between 1980 and 2005, with most of that growth happening in the 1990s. Not only has the number of Americans incarcerated increased but their terms have gotten longer, leading to a greater proportion in long term vs short term detention. The current debate is only possible in a relatively modern world where a common tool of crime enforcement is long term incarceration. But that simply was in the future in the 1920s.
Large scale imprisonment is a modern and new phenomenon, not something with a long history. For example, in 1932 about 200,000 Americans were incarcerated. About half of those in short term detention of some kind or another. That was less than .2% of the population. Today we have about .8% of the population incarcerated and only about a third of them are in short term detention. Incarceration began to grow in the 1930s, began to shrink in the 1950s, then began to grow again in the 1960s to 1970s. Then it doubled between 1980 and 1990 and then doubled again between 1990 and 2000, representing the vast majority of growth. Its growth then slowed before it started to shrink in the mid 2000s. It's since continued to shrink. So we have a pretty secure time period for the explosive growth of mass incarceration: 1980 to 2000. You'll note that starts fifty years after Prohibition ended.
Mass arrests and large scale detention were an option in the late 20th century due to the growth of government power and a new political view of government that saw it as a provider of solutions to social problems. This was especially the case after the New Deal and Great Society. But those were in the future during Prohibition. The government of the 1920s lacked the judicial forces and police powers to do anything like the drug prohibition we have today. They lacked the courts, the judges, and the prosecutors. And they lacked the actual prisons and facilities. They also didn't have a view of themselves that implied such broad mandates.
These things would be built up in the 1930s through to modern day as government powers and state capacity grew. And the growth of crime in the 1960s along with the Great Society's promise to solve social ills led to the ideas that the government was supposed to prevent even low level crime. But again, this is all very much after Prohibition.
From Smugglers, Bootleggers, and Scofflaws, Dry Manhattan: Prohibition in New York City, The War on Alcohol: Prohibition and the Rise of the American State, Battling Demon Rum: The Struggle for a Dry America, 1800–1933, The Great War to the Great Depression, The Bureau of Justice Statistics Correctional Population Historical Statistics, and The Punishment Imperative.
Well, at that point there probably weren't many of them locked up for very long, honestly! One of the major problems with prohibition was the lack of funding for enforcement of prohibition under the Volstead Act, and the level of enforcement varied greatly from region to region. In general, small towns were more likely to be strict on their enforcement of prohibition, and many counties chose to remain dry (some even to this day), so even though it was no longer a federal crime to make, drink, or sell alcohol, that doesn't mean it was necessarily decriminalized in certain areas in 1933. This means there wasn't like a floodgate of people suddenly locked up for things that weren't crimes anymore.
For some context, the federal Prohibition Bureau was formed in 1927 and was headed up by a prohibitionist lawyer from Ohio named John Kramer, but 6 months later he quit when he realized that the law would not, in fact, basically enforce itself as he had claimed it would, and his department was dramatically under-funded for the amount of work that his employees were expected to do. Prohibitionists essentially expected everyone to just obey and not drink at all, so when people continued to produce and consume booze they were like *surprised Pikachu face*. This meant that the measly $10 million budget for the Prohibition Bureau in 1926 (out of the estimated $300 million actually required) left agents very underpaid - especially in more expensive cities- so agents were often very susceptible to taking bribes/payoffs just to make ends meet. This meant that those who could afford to slip an officer some funds were not often arrested, so the "big fish" who made and distributed bootleg liquor weren't often nabbed and charged. When FDR took office in 1932, he slashed the department's budget down to barely $2 million, so the funding was drying up even further before prohibition was finally repealed. According to Richard Hanes in the early 1930s, "Raids on speakeasies were rarely more than an annoyance, and even padlocking doors rarely kept speaks closed more than a day. Courts were overwhelmed with Prohibition cases, and the juries generally sided with the accused. As a result courts began to set aside certain days for bootleggers, moonshiners, smugglers, and speakeasy managers to come, plead guilty, pay a five or ten dollar fine, and go back to what they had been doing." So, essentially, by the end, the budget for finding and prosecuting folks was dried up, and people could get sprung from jail easily as long as they could pay their fairly small fines.
After prohibition was repealed there was a mad rush for liquor licenses, so those in the previously-illegal booze business were generally able to stay in their same field if they wanted to do so above board.
Sources (sorry they're not public links - I got these through my local library system's online databases):
- Prohibition Repealed 1920-1933. (2002). In R. C. Hanes & S. M. Hanes (Eds.), Historic Events for Students: The Great Depression (Vol. 3, pp. 1-32). Gale. https://link.gale.com/apps/doc/CX3424800068/UHIC?u=sirls_main&sid=UHIC&xid=5ea2ba25
- Prohibition Ends. (2001). In J. S. Baughman, V. Bondi, R. Layman, T. McConnell, & V. Tompkins (Eds.), American Decades (Vol. 4). Gale. https://link.gale.com/apps/doc/CX3468301235/GVRL?u=sirls_main&sid=GVRL&xid=1d8f4792
- "The End of Prohibition / Nov. 18, 1933." America, vol. 220, no. 8, 15 Apr. 2019, p. 8+. Gale In Context: U.S. History, https://link.gale.com/apps/doc/A584852808/UHIC?u=sirls_main&sid=UHIC&xid=9d63bedd. Accessed 14 Nov. 2020.
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