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Prohibition ends at last!

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The Prohibition Era and Policing: Drug Enforcement and Policy Center hosts Professor Wesley Oliver

March 22, 2019 | Events

This January officially marked a century since the National Prohibition Amendment was ratified. Even now, 86 years after being repealed in 1933, the ripple effects of Prohibition still echo throughout our criminal justice system today.

Professor Wesley Oliver of Duquesne University School of Law visited Moritz earlier this month to discuss his latest book, “The Prohibition Era and Policing: A Legacy of Misregulation,” on behalf of the college’s Drug Enforcement and Policy Center (DEPC). In his book, Oliver explores how creation of the exclusionary rule affected how interrogation techniques, eyewitness identification and police brutality are currently regulated.

Oliver was joined by the Honorable Maureen O’Connor, Chief Justice of the State of Ohio; the Honorable Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit; and Dr. Andrea Headley of The Ohio State University John Glenn College of Public Affairs for a paneled discussion.

“We now have really clear answers on when search and seizures are OK, but we don’t have a sufficient body of law telling us when we can interrogate in ways that are less likely to produce false confessions,” Oliver said. “We don’t have a constitutional requirement on eyewitness identifications that will better ensure their accuracy, and we don’t have good body of law on when officers are allowed to use force. I think the pivot we made during Prohibition has in some way contributed to all of these things.”

An alternative remedy, like injunctions against violating the Fourth Amendment, would allow judges to punish violence as well as illegal searches, he claims.  This would have allowed a body of law to develop in which judges described when the use of force was unjustified, when interrogation techniques were threatening, and when searches were illegal. Prohibition led courts to a relatively easy solution that focused only on searches, he added.

Here’s what else we learned from Oliver about the legal precedents created during Prohibition.

The 1920s weren’t the first period of Prohibition in the United States.

Neal Dow, a Temperance activist and mayor of Portland, Maine, lobbied the Maine legislature to abolish the sale, production and trafficking of alcohol in the 1850s.

In the Northeast and the Midwest, Temperance Watchmen were enforcing the liquor laws, so basically your nosy neighbor who didn’t want anyone to drink was going to go to a judge and say, ‘We want to have the Jones’ house searched; we believe there’s liquor in it,’” Oliver said. “When they went to the judges to get these search warrants, sometimes they would show up with an invalid basis for suspicion.”

The U.S. Supreme Court case Boyd v. United States (1886) was one of the first major privacy and search and seizure rulings in the country.

This landmark case established a relationship between the Fourth and Fifth Amendments. However, the ruling didn’t catch on nationwide until after national Prohibition was ratified in 1919, Oliver said, when newspapers started detailing stories of search and seizure violations around the country. This led to creation of the exclusionary rule, which prevents evidence gathered in violation of the Fourth Amendment from being used in a court of law.

“There was a national outrage about the proliferation of illegal searches and seizures,” Oliver said.

Michigan was one of the first states to adopt the exclusionary rule during Prohibition.

The U.S.-Canadian border was known for being especially porous to alcohol trafficking along the Detroit River, which separates Detroit from Windsor, Canada.

“In the wintertime, people would drive their cars laden down with cases of alcohol across the Detroit River because they could avoid enforcement, and it was frozen over enough that it could support the cars,” Oliver said. “You had a lot of police-citizen interactions there that were very unpleasant. That was one of the earliest states to try to get a handle on this problem, of illegal searches for liquor, that quite often, particularly in Michigan, turned violent.”

The Supreme Court case Mapp v. Ohio (1961) ruled that the exclusionary rule applies to both state and federal courts. According to Oliver, the Mapp decision was a missed opportunity to address a larger issue of police violence.

“There were things from petty indignities to murder that were illegally committed as part of the enforcement of the liquor laws in the 20s. Flash forward to the 60s, we don’t have an epidemic of search and seizure problems. We do, however, have an epidemic of police-citizen tension,” he said. “In 1961, we are four years away from the Watts Riots and four years away from the creation of the Black Panthers. We’ve now created a rule [the exclusionary rule]—that courts would later describe as the primary method of regulating police—that only works if they have found something on you that proves you are guilty of a crime. Most police brutality cases, most excessive use of force cases involve no such discoveries.”

Other Prohibition-era landmark cases like Ziang Sung Wan v. United States (1924) addressed whether coerced confessions were admissible in court.

“Now our constitutional test for the admissibility of a confession is voluntariness. That test does not take into account concerns about trustworthiness,” Oliver said. “If an officer tells a suspect, ‘Three guys have already told us you did the crime,’ most courts won’t invalidate the confession, even though we have shown through cases in which there have been DNA exonerations that when you lie to a suspect, particularly after a prolonged interrogation, this can produce a false confession. In Prohibition, we made the shift from reliability to deterrence as our basis for regulating the admissibility of evidence when police officers obtained it.”