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The Untouched

Some thirteen years after its release, I finally got around to watching The Untouchables, the story of Elliot Ness and his intrepid band of Al Capone busters who operated in Chicago in the late 20s. Thirteen years is also the length of time that the US constitutional amendment prohibiting alcohol was in operation, the infamous Volstead Act.

The movie's name comes from Ness' reputation of being untouchable -- his complete refusal to accept bribes. That such behaviour, an honesty we these days routinely expect and demand of our public officials, should receive special recognition suggests a great deal about the levels of corruption within the bodies charged with enforcing Prohibition.

As it happens, in the movie Kevin Costner's Ness' incorruptibility was just one of the two virtues he exhibited. The second was -- wait for it -- he liked children. But then, so did Robert De Niro's Al Capone.

Against this we must weigh Ness' failings. His first successful action in the movie is to conduct a violent raid without the benefit of a search warrant. Perhaps this starts to explain the later development in the US of the Miranda doctrine (which holds that evidence secured unlawfully may not be admitted in evidence). Focussing on Capone, who everyone knows to be the bad guy, Ness drops his initial commitment to proceeding lawfully and finally gets his man through murdering a suspect and blackmailing a judge.

But at least he couldn't be bribed ... and he liked children.

Of course Ness' personal failings weren't the focus of the movie. Indeed, with the artfulness of the film's production, the well-behaved watcher will come away thinking of Ness as some kind of hero. Neither were the problems of Prohibition, or of law enforcement generally, intentionally exposed. But just a moment's thought reveals the movie to be an inadvertant indictment of modern policing and law making.

On 29 January 1919 the Volstead Act, which introduced Prohibition, came after due ratification by the US States to form the 18th Amendment to the US Constitution. An amendment was required because the US Federal Government had no power, at least in those days, to interfere with people's freedom to produce, sell or transport 'intoxicating liquors'. It was those activities that the 18th Amendment banned, with effect from 29 January 1920. It did not purport to prohibit individual's power to drink.

The foolishness of this attempt to change a whole people's habit by law resulted in an action so rare that it must be considered historic: by law, the nation admitted that Prohibition was wrong. On 5 December 1933 the 21st Amendment to the Constitution repealed the 18th Amendment (although, ever reluctant to surrender power, the Federal authorities ensured it granted them power to enforce State prohibition).

It is generally accepted that organised crime in the US received a kick-start thanks to prohibition. Many thousands died from drinking adulterated liquor. The gradual progress the maturing United States was making in reducing official corruption was abruptly reversed. And with the reduced availability of alcohol, and its increased price, there was a significant shift within the African-American community in the southern states to narcotic use.

Meanwhile, why was The Untouchables' Ness so determined to get Capone? Well near the start of the movie, during one of the Prohibition's beer wars, a small girl gets blown up by a bomb, presumably placed at Capone's orders. Remember, Ness was an official of the United States Department of Treasury, not a member of the Chicago police. Ness had no jurisdiction over murder, only the police did. Of course, the Chicago police were hopelessly corrupt, following the lead of Mayor 'Big Bill' Thompson who had been elected in 1927 with the help of $260,000 from Capone. Nevertheless, burning with a desire for justice for the dead girl, Ness pursued Capone, and Capone alone as far as the movie is concerned. But tying Capone to illegal involvment in the liquor trade itself also proved difficult, so when Ness finally got his man, it was not for murder. Nor was it for prohibition offences. It was for tax evasion.

Thus we have a pattern of targetting not the crime, but the man. There are few more dangerous police activities in a nation that purports to adhere to the rule of law. There was a time, perhaps even as late as 1930, when it mattered little because laws were few. But with the close regulation of every day life to which were are these days subject, every one of us is likely to have breached several laws in the course of our lives. Close enough scrutiny of my own life could probably justify prosecution for a number of offences, none of them especially reprehensible activities but technical breaches of some of the two to three hundred Federal Acts passed each year in Australia, or similarly numbered Federal Regulations, or the many other laws imposed by subsidiary jurisdictions. And I don't even know what the breaches are because, contrary to the irrebuttable presumption of the Common Law that ignorance does not excuse, there is not a single person in Australia who knows, or can realistically obtain proper legal advice, on every aspect of his or her life.

This technique of finding a crime to fit the person, rather than punishing people for particular crimes, has persisted. Prior to the 1993 raid on the Branch Davidian compound in Waco, Texas, the Bureau of Alcohol Tobacco and Firearms, a US Federal body, told the US Army that it was conducting a drug raid in order to obtain use of its training facilities (one of the few circumstances in which the US Army is empowered to aid a law enforcement body is training for drug raids). Drug offences are not part of BATF's reason for existence. The search warrant specified possible sexual offences against minors. The local authorities had previously investigated, and dismissed, these allegations and, in any case, they were outside BATF's jurisdiction. The principle stated reason for the raid, and BATF's only legitimate grounds for involvement, were firearms offences.

The few Branch Davidian survivors were ultimately acquitted of these charges.

© 2000 - Stephen Dawson