The Moonshine War

When he fires up a secret still, a moonshiner violates no fewer than eleven federal laws, including one that commands him to display a sign "disclosing his name and occupation." Even so, moonshiners are tougher to catch than Viet Cong guerrillas. They booby-trap stills, wire the woods with hidden buzzers, warn one another with trained dogs and walkie-talkies. Only the best-trained woodsmen among federal agents can track them, usually at night when both sides flit through the back hills armed to the teeth.

In 1958, Congress tried to give the feds a boost by passing a law that creates a presumption of guilt for anyone caught near a moonshiner's place of business. Unless he has a good alibi, "such presence of the defendant shall be deemed sufficient evidence to authorize his conviction." Last week that law came before the Supreme Court in the case of Jackie Gainey, a Georgia moonshiner who had been nabbed near a still. Upholding the law 8 to 1, the court, in a majority opinion by Justice Potter Stewart noted that moonshiners are "notorious for the deftness with which they locate arcane spots for plying their trade." Because strangers "rarely penetrate the curtain of secrecy," it is reasonable to assume that anyone around a still is in on the secret.

But Justice Hugo Black was aghast at the decision. In a dissent that ran longer than the majority opinion, Black saw Congress usurping the jury system that he reveres. Congress can "create crimes," said Black, but the Constitution empowers judges or juries to decide the facts "on their own judgment without legislative restraint." As for personal experience, drawled Black from the bench, "I come from a part of the country where now and then they had some stills, but I never thought that if I was unlucky enough to be caught around there, hunting birds or something, my presence would be enough to convict me."

Alabamian Black's home state has, in fact, something more than "now and then" stills. The feds broke up 1,059 stills there last year, made 619 arrests in the process. The last two revenuers killed in a liquor raid were shot a little more than a year ago in Alabama's Bibb County. Even so, argued the feds in U.S. v. Gainey, chances that innocent hunters may stumble on stills are "very, very small. Other rural possibilities--a lost motorist or an airman who parachutes to safety--are even more remote." Indeed, the feds figured the odds against a stranger ever tangling with moonshiners at 100 to 1.

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