Home Distilling: Yep, Still Illegal

Image: Amazon

Making your own hooch is as American as apple pie. Or more accurately, hard apple cider, since that’s why Johnny Appleseed was really planting all those trees. For years we brewed, made wine, and yes, distilled at home quite legally. But personal production stayed illegal after Prohibition ended, part of the government’s attempt to control supply and ensure that any booze that got produced, produced taxes. The rule had the effect, of course, of limiting new entrants to the alcohol marketplace—it’s tough to open a brewery when learning to brew is illegal.[i] That changed in 1979, thanks to an unsung hero of this era of ethanol ecstasy we currently enjoy: Senator Alan Cranston. Cranston added an amendment to H.R. 1337, a bill that adjusted a variety of arcane details in the Internal Revenue Code. The amendment just stated that home production of beer and wine would be exempt from excise taxes. The bill passed, Jimmy Carter signed it without fanfare, and boom, the 1980s see the rise of the brewpub and the beginnings of the modern micro era.[ii]

But of course, home distilling was not included in the 1979 law. There are three basic reasons for that:

  1. The government, and Americans as a whole, have a cultural perception that liquor is more dangerous than lower-proof alcohol.
  2. There were, and are, concerns about the safety of distilling, both real and imagined. Many of the problems associated with “moonshine” or “bathtub gin” came from the addition of poisons to up the potency during Prohibition—including by our own government. There’s no reason that legalizing home production would lead to more of that. But if a distiller doesn’t know how to properly cut the heads and tails from their run, or worse, if they use the wrong metal to build their still, they could make someone quite sick.
  3. There just wasn’t the same demand to home distill. People wanted to brew in large part because they saw the wide variety of beer available around the world, and wondered why all we made in America was the yellow fizzy stuff. But that wasn’t really the case in spirits: the stuff the big Kentucky distillers were turning out was totally palatable, and if you weren’t in the mood for bourbon, scotch was available. Add to this the complexity and expense of making good spirits, and people weren’t exactly banging on Uncle Sam’s door.

You may have noticed that despite the omission of home distilling from the 1979 law, plenty of small distilleries have been cropping up in recent years. After the wine and beer booms, it was inevitable; there’s too much money to be made. As far as I can tell, these distilleries are getting around the small-p prohibition of home distilling by either:

  1. Being the nephew of a Beam or some other whiskeyed family, so having grown up around distilling;
  2. Being rich and hiring some chemistry grad student to distill, throwing money into marketing and cool tasting rooms until he/she figures it out; or,
  3. Being willing to just break the law. I mean, the Feds don’t really care that much, as long as you don’t sell it.

That the craft liquor industry is booming despite the ban on home distilling is a compelling argument that the status quo is working. The feds turn a blind eye to the vast majority of moonshiners, and step in if something seems dangerous, or if somebody starts selling it without giving big brother his share. It’s the jaywalking of booze crime.

But if you get charged with jaywalking, you get what, a small fine? It’s either a misdemeanor or an infraction, depending on where you are, and is generally on par with a parking ticket. If you home distill? “You’re looking at roughly a dozen felonies.”[iii] Does that seem right?

No. That doesn’t seem right, and there’s no reason for it to be that way. Our home distilling laws are antiquated and overly punitive, relics of the Prohibition era. A good legal framework should not slap a huge penalty on a generally-benign activity, simply to catch the few who abuse it. We should not have a law that is so rarely and unevenly enforced, but that carries such severe consequences.

A better way is found in that same jaywalking example. The base penalty is slight, and if the situation is really dangerous—if, say, you run out into traffic with kids in tow—there are other charges that can be added on, reckless endangerment and disorderly conduct and the like, to reflect the gravity of the situation. Similarly, the act of moonshining itself needn’t be criminal; it could be legalized, and dangerous behavior could be dealt with through other appropriate charges.

A few in Washington have begun to recognize this. As recently as 2015, a bill was introduced in the House and Senate that included legalization of home production of spirits for personal consumption. But when that bill was re-introduced in 2017, that provision was gone, a victim of political reality. There’s a lot of history here that’s hard to push against.

With that in mind, I’ll offer a middle ground—three steps to improving American moonshining law without totally legalizing it:

  1. Substantially lower the penalty for unlicensed home distilling. Make it a misdemeanor carrying a small fine.
  2. Outline appropriate additional charges for dangerous activity that quickly elevate the penalty.
  3. Give states the option of offering a home distilling license. It could carry a nominal fee and require a short online course, and would give hobbyists a way to be on the up-and-up. And of course, it would not permit the distiller to sell their wares. Gotta make sure Uncle Sam gets his.

[i] There were, of course, lots of other reasons for the limited beer market, like the high cost of entry, effective suppression by the big brewers, and brewers’ perception of the drinking public’s lack of interest in variety.

[ii] The vibrant American wine industry that we know today got started a little before the law passed, for a variety of reasons, including some key European immigrants, some Julia Child-led Francophilia, and the inherently place-based nature of fine wine (by which I mean, Napa Valley was just too good a spot to go un-wined forever). If you’re interested, I highly recommend American Wine: A Coming-of-Age Story by Tom Acitelli.

[iii] Penalties enumerated at 26 USC §5601

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