w w w . b r e n t o n p r i e s t l e y . c o m


Prohibition -
A Foundation of Organised Crime (2004)
Brenton Priestley


 

 

INTRODUCTION

Governments may seek to protect their populace by prohibiting various goods or services, such as liquor, drugs, prostitution or gambling. However, such attempts are inevitably unsuccessful, and usually counterproductive. The purpose of the criminal law, according to John Stuart Mill, is to prevent harm to others; a person’s ‘... own good, either physical or moral, is not a sufficient [1]. Prohibition, which tries to enforce what is essentially private behaviour, for an individual’s ‘own good’, is futile, because it overlooks two fundamental factors: human nature and basic economic theory. The natural response to prohibition is not abstinence, but subterfuge: thus, organised crime. This discussion will examine the relationship between prohibition and organised crime with specific reference to Prohibition of liquor in the United States from 1920-33, move on to compare the current prohibition of illicit drugs amongst Western Nations, and then conclude by considering future directions and alternatives to prohibition.

ORGANISED CRIME, PROHIBITION AND ECONOMICS

Legitimate and criminal enterprises share the same goal: economic gain. If there is a product or service for which there is a demand, then an organisation, criminal or otherwise, can try to profit by supplying it. If the product or service is prohibited, then, naturally, those who continue to supply it will be deemed criminals. The prohibition will mean that demand will outstrip supply, increasing the value of the prohibited substance or service. Prohibition is thus a cause of organised crime, rather than a solution. Schloenhardt writes

... the economic opportunities of illegal markets are the incentives for organised crime. Criminal organisations come into existence and flourish simply because of the dynamics of the illegal markets in which they operate. Organised crime can therefore be considered as the rational response to substantial economic opportunities in areas which are proscribed by government .[2]

For these reasons, the prohibition of both alcohol and especially illegal drugs not only failed to suppress their production, sale and use, but actually fostered extraordinary growth of the industries. Furthermore, as Thornton notes,

[i]n the process of providing goods and services, those criminal organizations resort to real crimes in defense of sales territories, brand names, and labor contracts... [t]he most telling sign of the relationship between serious crime and Prohibition was the dramatic reversal in the rates for robbery, burglary, murder, and assault when Prohibition was repealed in .[3]

Of course, the repeal also brought an end to the illicit liquor trade; organised crime gangs simply couldn’t compete against a legitimate industry which provided a cheaper, safer product. However, by then, the gangs had gained enough of a foothold in terms of to exploit the business opportunities inherent in other prohibited activities, initially prostitution and gambling, and later illicit drugs.

CONSUMPTION, DEMAND AND CORRUPTION

Ultimately, the organised crime that grew from Prohibition was extremely pervasive, implicating both the general public as well as the government, courts and the police force.

Again, as in legitimate business, the profitability of organised crime is dependent on consumer demand. Governments are only ever going to prohibit goods and services for which significant demand exists, which generally guarantees a ready black market. The Prohibition of liquor within the United States was largely an historical accident arising from a peculiar American conditions of Puritanism and [4]. Clearly, the public never had any intention of following the Prohibition laws:

There was no need for abstinence during Prohibition. The number of illegal drinking outlets soon approached and then overtook the number of pre-Volstead [legal] saloons... Prohibition simply made consumption of alcohol more of a .[5]

Rorabaugh ultimately credits Prohibition’s failure to the ‘... lack of popular support for [6]. The law is hard enough to enforce as it is, but when the illegal activity is private or consensual, its enforcement becomes almost untenable. This is not to say that the government didn’t try. In a striking harbinger of the contemporary overcrowding of jails with individuals charged with drug crimes, Thornton claims

Before Prohibition and the Harrison Narcotics Act (1914), there had been 4,000 federal convicts... By 1932 the number of federal convicts had increased 561 percent, to 26,589... Much of the increase was due to violations of... Prohibition .[7]

No matter how harsh the prohibition penalties, they simply don’t act as enough of a deterrent when there is so much money at stake.

Simultaneously, prohibition inevitably spawns corruption amongst those who enforce the law. The astonishing levels of bribery throughout the government, courts and police force during Prohibition have been amply [8]. As with the general public, this is not necessarily because of inherent faults within the members of government, courts and the police force, but simply because when the economic benefits are so large, human nature is fairly predictable. The fault therefore lies in the prohibition itself for fostering the conditions that compromise those who implement the law, defeating its purpose.

ILLICIT DRUGS: A CONTEMPORARY ISSUE IN PROHIBITION AND ORGANISED CRIME

The Prohibition period is generally considered an aberration, a period of idealistic folly at best, and a gross miscalculation at worst. However, the current prohibition of illicit drugs pursued by the not only the United States, but the world at large, must be seen as being comparably absurd.

Clearly, there are some differences between the two. Demleitner points out that drugs like cannabis, cocaine or heroin aren’t sanctioned by society in the same way as [9]. Because of this, the use of illicit drugs isn’t as widespread as alcohol, however evidence suggests that their use is becoming increasingly prevalent, and even accounted for eight percent of international trade as long ago as [10]. The other key difference is that unlike Prohibition, which was limited to the United States for a relatively brief period, the drug prohibition regime has reached worldwide for decades.

In terms of actual drug consumption, the drug prohibition may be seen as moderately successful; deaths caused by licit drugs, such as tobacco and alcohol, far outweigh those caused by illicit [11]. However, in terms of suppressing organised crime, drug prohibition has surely failed as comprehensively as Prohibition. Despite billions of dollars being poured into anti-drug enforcement and increasingly draconian punishments being handed out to traffickers, dealers and users alike, drug production and trafficking remain the most common and lucrative forms of organised crime, and in some cases, form the economic backbone of entire [12]. Prohibition is not the solution. Is there one?

CONCLUSION: ALTERNATIVES TO PROHIBITION AND FUTURE DIRECTIONS

The sanest alternative to drug prohibition is legalisation, regulated similarly to alcohol, tobacco or gambling. This would immediately reduce the black market for illicit drugs, and thus reduce organised crime.

There are serious health risks associated with drug abuse, but this partially due to the fact that the illicit drug trade has no quality [13]. In any case, although legalisation may lead to initial higher drug use, and subsequent public health issues, the money saved on enforcement could be funnelled into the kinds of education programs that have consistently decreased tobacco use over the years.

Such a solution is, of course, politically unpalatable, and extremely unlikely to be implemented at any time soon, considering the entrenchment of anti-drug policies in both Australian and American legal systems. A more modest solution to the problem would be to make addiction a medical rather than a criminal matter. By focussing on the upper echelons of the illicit drug hierarchy, rather than the small-scale dealers, addicts and recreational users, the law will be able target organised crime more effectively and decrease the congestion of the legal system.

 

ENDNOTES

Quoted in Michael Woodiwiss, Crime, Crusades and Corruption (1988), 228.

Andreas Schloenhardt, ‘Organized Crime and the Business of Migrant Trafficking: An Economic Analysis’ (Paper presented at the Australian Institute of Criminology Occasional Seminar, Canberra, 10 November 1999) 8. <http://www.aic.gov.au/conferences/occasional/schloenhardt.pdf> (17 February 2004).

Mark Thornton, ‘Alcohol Prohibition Was a Failure’ (1991) Cato Policy Analysis 157. Obtained from <http://www.cato.org/cgi-bin/scripts/printtech.cgi/pubs/pas/pa-157.html> (14 February 2004).

The entire concept of prohibition is essentially an American one. See Woodiwiss, above n 1, 1-17.

Ibid 11.

W.J. Rorabaugh. ‘Re-examining the Prohibition Amendment’ (1996) Yale Journal of the Law and Humanities 8, 162.

Above n 3.

Al Capone estimated that he paid $30 million in bribes every year to government officials, and that half of the Chicago police force was on his payroll. Quoted in Woodiwiss, above n 1, 73-4.

Nora V. Demleitner, ‘Organised Crime and Prohibition: What Difference Does Legalisation Make?’ (1994) Whittier Law Review 15, 631.

Alfred McCoy ‘From Free Trade to Prohibition: A Critical History of the Modern Asian Opium Trade’ (2000) Fordham Urban Law Journal 28, 309. For the specific example of heroin, McCoy states ‘[o]ver the past thirty years... the estimated number of heroin users in the United States has increased... from 68,000 to some 810,000 chronic users today.’

Worldwide in 2003, deaths caused by illicit drugs numbered barely three percent of the drug-related death total. Tobacco was by far the biggest killer. Reuters, Study: Tobacco, Alcohol, Drugs Kill 7 Million a Year (2004) <http://abcnews.go.com/wire/SciTech/reuters20030225_149.html> at February 17 2004

See Sharon A. Gardner, ‘A Global Initiative to Deter Drug Trafficking: Will Internationalising the Drug War Work?’ (1993) Temple International and Comparative Law Journal 7.

Furthermore, the serious health risks of alcohol and tobacco abuse (tobacco abuse - a tautology if there ever was one) are well documented.

WORKS CITED

Nora V. Demleitner, ‘Organised Crime and Prohibition: What Difference Does Legalisation Make?’ (1994) Whittier Law Review 15.

Sharon A. Gardner, ‘A Global Initiative to Deter Drug Trafficking: Will Internationalising the Drug War Work?’ (1993)
Temple International and Comparative Law Journal 7.

Alfred McCoy ‘From Free Trade to Prohibition: A Critical History of the Modern Asian Opium Trade’ (2000) Fordham Urban Law Journal 28.

Reuters, Study: Tobacco, Alcohol, Drugs Kill 7 Million a Year (2004)
<http://abcnews.go.com/wire/SciTech/
reuters20030225_149.html> at February 17 2004.

W.J. Rorabaugh. ‘Re-examining the Prohibition Amendment’ (1996) Yale Journal of the Law and Humanities 8.

Andreas Schloenhardt, ‘Organized Crime and the Business of Migrant Trafficking: An Economic Analysis’ (Paper presented at the Australian Institute of Criminology Occasional Seminar, Canberra, 10 November 1999) 8.
<http://www.aic.gov.au/conferences/occasional/
schloenhardt.pdf> (17 February 2004).

Mark Thornton, ‘Alcohol Prohibition Was a Failure’ (1991) Cato Policy Analysis 157. Obtained from <http://www.cato.org/cgi-bin/scripts/printtech.cgi/
pubs/pas/pa-157.html> (14 February 2004).

Michael Woodiwiss, Crime, Crusades and Corruption (1988).


feedback.gif (356 bytes)