Table Of ContentFederal Criminal Law Doctrines
Federal Criminal
Law Doctrines / The Forgotten
Influence of National Prohibition
Kenneth M. Murchison
Duke University Press Durham and London 1.994
© 1994 Duke University Press
All rights reserved
Printed in the United States of America on acid-free paper
00
Designed by Cherie Halma Westmoreland
Typeset in Melior by Yankee Typesetters. Inc.
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Contents
Acknowledgments vii
1
The Prohibition Backdrop 1
2
Entrapment: The Emergence of a Legal Doctrine 23
3
The Fourth Amendment, 1920-1929:
A Doctrinal Explosion 47
4
The Fourth Amendment, 1930-1933:
Refinement and Rediscovery 74
5
Double Jeopardy: Crystallization of an Enduring
Exception 104
6
Property Forfeitures: Interpreting the Language
of the Volstead Act 126
7
Jury Trials: Primacy of Institutional Concerns 154
8
The Prohibition Era and the Development of
Federal Criminal Law 176
Notes 201
Index 273
Acknowledgments
Many people have contributed to bringing this project to fruition. The
most direct contribution was that of Morton Horwitz. His initial en
couragement was instrumental in persuading me to begin graduate
studies at the Harvard Law School, and he served as advisor for the
dissertation from which this book is adapted. As advisor, Morton
sharpened my analysis with his comments and questions, but he al
ways allowed me to pursue my own ideas even when they diverged
from his own.
Other teachers and advisors have also made important contribu
tions. The problem that I was assigned to complete for Welsh White's
criminal procedure class when I was a second-year law student at the
University of Virginia gave me the first glimpse of prohibition's im
pact on federal criminal law. David Flaherty organized the legal his
tory program at the University of Virginia that sparked my interest in
the subject, and his legal history course gave me the first opportunity
to analyze the impact of prohibition on American law. When the
project almost died at an early stage, William Harbaugh agreed to
serve as a replacement advisor at the last moment so that the entrap
ment section could become my M.A. thesis at the University of Vir
ginia.
A number of individuals assisted me in revising the dissertation for
publication. The late George Armstrong offered useful hints regarding
style, Gaines Foster read portions that were particularly difficult to
rewrite, Michael Blumm reviewed the manuscript and offered helpful
words of encouragement at a particularly discouraging point in the
process, and John Devlin graciously critiqued last-minute changes as
soon as they came out of the word processor. My research assistant,
Janet Britton, rechecked all the sources and proofread the entire
manuscript with great care. At the Duke University Press, Rachel Toor
has been the model of a supportive editor.
Over the years, librarians at various institutions-Harvard Law
School, the University of Virginia, Louisiana State University, and the
University of Richmond-provided much needed help. lowe particu
lar thanks to Charlotte Melius and Madeline Hebert, research li
brarians of the Paul M. Hebert Law Center of Louisiana State Univer-
Acknowledgments / viii
sity. They consistently helped me locate difficult sources that were
often out of print.
The Paul M. Hebert Law Center has assisted me in other ways as
well. Financial support enabled me to finish my research after com
pleting my year in residence at Harvard, and an invitation to make a
presentation at a faculty colloquium helped to bring my work to a
conclusion. The services of five able typists-Susan Roshto, Toni
Fontenot, Debby Broussard, Laurie Knight, and Linda Duplessis
transformed my rough drafts into a finished project.
Portions of earlier drafts of the manuscript have previously been
published in the following articles: The Entrapment Defense in the
Federal Courts: Emergence of a Legal Doctrine, 47 Miss. 1.J. 211
(1.976); Prohibition and the Fourth Amendment: A New Look at Some
Old Cases, 73 J. Crim. 1. & Criminology 471. (1.982); Property Forfei
tures in the Era of National Prohibition: A Study of Judicial Response
to Legislative Reform, 32 Buff. 1. Rev. 41.7 (1.984); The Dual Sover
eignty Exception to Double Jeopardy, 1.4 N.Y.U. Rev. 1. & Soc. Change
383 (1.986). Those portions are reprinted here with the permission of
the respective reviews and, in the case of the Mississippi Law Journal
article, with the permission of Fred J. Rothman and Company.
Finally, a special word of thanks must go to my family, which
allowed itself to be uprooted and moved across the country so I could
undertake the research on which this work is based. Above all, I am
indebted to Eloise who has helped me throughout the project. Not
only did she provide the financial support that enabled me to begin
my legal studies, she has also supported me in countless other ways
during the last twenty-five years.
Kenneth M. Murchison
February 1.994
1 / The Prohibition Backdrop
The era of national prohibition is a fascinating and significant chapter
in United States history. In 1920 the nation began the "noble experi
ment"l of federal control of intoxicating liquors. The ratification of
the Eighteenth Amendment prohibited the manufacture, sale, and
transportation of intoxicating liquors as well as their importation into,
or exportation from, United States territory.2 Just thirteen years later,
the experiment ended in failure. The Twenty-first Amendment abol
ished national prohibition,3 and the Eighteenth Amendment became
the first (and only) constitutional amendment to be repealed.
As a failed attempt to regulate national morals, the prohibition ex
periment has drawn the attention of contemporary policy analysts as
well as historians. Both commentators and scholars have, however,
generally overlooked the importance of the experiment for the devel
opment of legal thought, and that omission is unfortunate. Studying
the prohibition era not only clarifies the historical development of
federal law and the impact prohibition had on the intellectual culture
of the nation. It also suggests the need for a revision of the conven
tional wisdom regarding the Supreme Court of the 1920S and offers an
illuminating case study of how legal doctrine responds to changing
social conditions.
Much contemporary interest in national prohibition derives from
the desire to draw parallels to modern problems. In particular, ana
lysts have tried to draw parallels with respect to current regulations of
alcohol and other drugs.
Recent years have seen the emergence of new and stricter controls
on liquor consumption. For example, most states have strengthened
their laws against driving while intoxicated. Responding to federal
pressure, states have also raised the legal age for purchasing alcoholic
beverages to twenty-one.4 Certainly no one has advocated a return to
prohibition. Nonetheless, one study has suggested the future may
produce "new, extensive regulation of the liquor industry ... inte
grated into a paradigm of environmental safeguards and corporate
responsibility ....
"5
For other drugs, the current political mood is more ambivalent. The
past has emphasized suppression through criminal prosecution, and
