(Illustration by Tomás Serrano)

Out of the shadows

According to Hollywood legend, Eliot Ness, PhB’25, brought down Al Capone. The reality is more complicated.

It’s hard to imagine how anyone ever thought Prohibition would work.

When the 18th Amendment took effect at 12:01 a.m. on January 16, 1920, it criminalized what had been the fifth-largest industry in the country. Yet the unpopular law failed to reduce alcohol consumption; possibly drinking even increased. For 13 long years, Prohibition turned the United States into a nation of scofflaws.

Buying and consuming alcohol were not technically illegal, but the manufacture, sale, and distribution was. Countless otherwise law-abiding citizens owned or worked in illegal liquor businesses. Women were arrested in record numbers, overwhelming the justice system; before Prohibition, there was no federal prison for women.

Prohibition agents were almost universally despised, especially in large cities. Corruption in the Prohibition force was rampant; innocent citizens were occasionally shot or killed because they were mistaken for bootleggers or hit in the crossfire.

And yet, somehow, Prohibition agent Eliot Ness, PhB’25, was seen as a hero, the man who saved Chicago from evil gangster and bootlegger Alphonse “Scarface” Capone.

“It begins to look as if Chicago’s reputation for law enforcement was largely in the hands of destiny,” journalist Priscilla Higinbotham gushed in the Chicago Herald and Examiner in 1931. “For it was merely by chance that Eliot Ness, whose investigations have been so instrumental in the indictment of Al Capone and sixty-eight of his choicest hoodlums, joined the Prohibition force.”

Eliot Ness and Kevin Costner as Eliot Ness
In Brian De Palma’s 1987 film The Untouchables, Eliot Ness (left, at his Bureau of Prohibition desk around 1930) was portrayed by Kevin Costner (right), and the “careful unsensational investigator” became an action hero. (Left to right: HISL018 EC086/Courtesy Everett Collection; MSDUNTO EC034/©Paramount/Courtesy Everett Collection)

More than 20 years after alcohol was legalized, and Ness had fallen into obscurity, The Untouchables (Messner, 1957) turned his fight against Capone into legend. Ghostwritten by United Press International (UPI) sportswriter Oscar Fraley, the story was heavily fictionalized, with pages of invented dialogue and a style borrowed from hard-boiled detective fiction.

The book sold more than a million copies and made Ness—who died seven months before publication—more famous than he had been during the Prohibition years. With the book’s success, Ness joined the “American pantheon of crime-fighting icons,” as one journalist put it —an ironic development, given how much Americans loathed Prohibition.

The legend of the Untouchables was embroidered further when the book was adapted into a two-episode TV movie, The Scarface Mob, followed by a series, The Untouchables (1959–63). Since Ness had defeated Capone in the movie, the series needed other bad guys for him to battle each week. He took on assorted gangsters and, in one episode, a German diplomat trying to spread Nazi beliefs (and heroin) to the United States.

Later came the Brian De Palma film (1987), written by David Mamet, starring Kevin Costner as Ness, Robert De Niro as Capone, and Sean Connery as Ness’s fictional mentor, Jimmy Malone. (Malone gets most of the tough-guy lines: “You want to get Capone? Here’s how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That’s the Chicago way.”) The blockbuster movie was followed by a second, shorter-lived TV series (1993–94).

Like any legendary hero, the character of Ness has been adapted in other contexts. He’s name checked in the 1995 Tupac song “California Love”: “A state that’s untouchable like Eliot Ness.” In a 2012 episode of the paranormal TV series Supernatural, he hunts monsters, not gangsters . And Cleveland’s Great Lakes Brewing Company (cofounded by Pat Conway, AM’78) makes an Eliot Ness lager. “Admittedly, it’s a bit of a paradox to name our amber lager for history’s most famous agent of prohibition,” the company’s website states. “But it’s a smooth, malty (and dare we say, arresting?) paradox.”

Most recently, the protagonists of the time-travel TV series Timeless encountered Ness—portrayed by guest star Misha Collins, AB’97—in 1931 Chicago. As the three visitors from 2017 watch, horrifed, the agent dies in a hail of machine-gun fire.

“No. Eliot Ness—he can’t be dead, he’s not supposed to die for another 26 years,” says time traveler Lucy Preston (a history professor, though her history can be shaky). “Capone is out there on the loose and the only guy that can stop him is gone.”

Ness did not die during the Prohibition years, but that’s where his legend usually ends. It does not follow him to Cleveland, where he oversaw the police and fire departments for six years—though Fraley tried to sensationalize that period too, in a sequel called 4 Against the Mob (Popular Library, 1961). In Cleveland, as in Chicago, Ness fought police corruption and organized crime. By the time he left to take a federal job during World War II, “peace and law at long last had come to the city of Cleveland,” in Fraley’s retelling. “The filth had been sponged away.”

Others tried to strip away the embellishment. “Ness was no Agent 007,” wrote Philip W. Porter in the Cleveland Plain Dealer in 1966, a few years after the first Untouchables TV series was cancelled. “He was a careful unsensational investigator, who knew where to look for evidence. He hardly ever raised his voice. He made no scenes. He was boyish, amused, relaxed, good company in all circumstances.”

In film and on television, when Ness isn’t having shootouts with the bad guys, he’s usually portrayed as a dedicated, even sentimental, family man. (The number, age, and gender of his fictional children varies; in reality he had one adopted son, Robert.) The legend also omits the fact that he was married three times. His second wife left him for a woman.

But the screenplay or TV pilot about these aspects of Ness’s dramatic life has yet to be written.

Al Capone: All this talk of bootlegging. What is bootlegging? On the boat, it’s bootlegging. On Lake Shore Drive, it’s hospitality.

—The Untouchables (1987)

Eliot Ness was born in Chicago in 1902, the son of Norwegian immigrants; his father ran a wholesale bakery business. He grew up in the far South Side neighborhood of Kensington, not far from the company town of Pullman, where alcohol was only available at one hotel. It was easy to get a drink in Kensington, nicknamed Bumtown for its abundant saloons.

The National Prohibition Act—commonly known as the Volstead Act, after the Minnesota congressman who championed it—went into effect in 1920 but did not stop Americans from drinking. It just created a profitable new revenue stream for the nation’s gangsters. The most notorious, Al Capone, reportedly earned $60 million annually from illegal liquor sales (more than $847 million in 2017 dollars). “I’m just a businessman,” Capone often said, “giving the public what they want.”

As Capone was beginning to build his name in Chicago, Ness graduated from Christian Fenger High School—he liked to read Sherlock Holmes during his lunch hour—and enrolled at the University of Chicago, where he studied commerce, law, and political science. A typical undergrad of the time, he joined a fraternity and attended football games. According to some sources, Ness graduated in the top third of his class. Douglas Perry, author of the acclaimed biography Eliot Ness: Rise and Fall of an American Hero (Viking, 2014), writes that his grades “were awful.” (Ness’s academic record is sealed.)

After graduation Ness worked briefly for the Retail Credit Company. His brother-in-law, Alexander Jamie, a senior manager in the Chicago office of the Prohibition Bureau, helped him get a job there. But Ness was disappointed by what he found: corrupt agents on the mob’s payroll. According to the bureau’s own records, between 1920 and 1931, 9 percent of its personnel were fired for corruption. Doubtless many other crooked agents were never caught.

By 1930, according to his personnel file, Ness had earned a reputation for “coolness, aggressiveness and fearlessness in raids.” On Jamie’s recommendation, Ness was chosen to lead a special “Capone squad.”

In Untouchables book version of this tale, the squad is Ness’s idea. “Suppose the Prohibition Bureau picked a small, select squad,” he suggests to Jamie. “Let’s say ten or a dozen men. … No rotten apples. Get it?” Ness is put in charge of his proposed squad and told to handpick his agents. His criteria, as the book has it: “single, no older than thirty … the courage and ability to use fist or gun. … I needed a good telephone man, one who could tap a wire with speed and precision. I needed men who were excellent drivers, for much of our success would depend on how expertly they could trail the mob’s cars and trucks.”

In fact most of his agents were older, many married with families. And while The Untouchables claims Ness chose 10 men for his elite squad, there was never a set lineup; agents came and went, sometimes staying only a week or two.

One part of the legend is true: Ness and his agents really did put pressure on Capone in Hollywood-worthy ways. They crashed through the doors of breweries in a truck outfitted with a battering ram. They carried sawed-off shotguns and sat at the corner table in restaurants, nobody’s back to the door. They once created a distraction so their “telephone man,” dressed like a repairman, could shinny up a telephone pole outside a mafia bar and run a wiretap—a relatively new tool for law enforcement that, with surveillance and anonymous tips, helped Ness’s squad discover how Capone’s bootlegging empire worked.

Capone tried hard to conceal his operation, but he also paid politicians, police officers, and even federal agents not to look for it. As the story goes, one of Capone’s men offered Ness $2,000 a week. An outraged Ness ordered the man out of his office and immediately called the press. The next day, a Chicago Tribune article gave the squad the nickname that stuck: “The Untouchables.”

Calling the press was a typical strategy for Ness, who often tipped off the newspapers when he was going to conduct a raid. He believed media coverage helped the cause of law enforcement, winning over the public and making the police seem invincible.

Despite the heroic view the newspapers took of Ness, media coverage occasionally struck a wistful tone about the particular crimes he was fighting. “Prohibition agents, aided by police, today destroyed enough bourbon whiskey, which, if mixed into mint juleps, poured into tall, thin frosted glasses and garnished with a sprig of mint—which would ... Anyway, here’s looking at you,” read a 1931 article in the Chicago Evening American. “It’s in the sewer, sent there by Assistant Prohibition Agent Elliott [sic] Ness and his squad of ‘untouchables.’”

Ness knew full well that the law he was enforcing was unpopular. “The trouble with the Prohibition law was that such a large section of the public did not believe in it,” he wrote in his own memoir of those years, never published. “They either were against it in its entirety or figured it was for the other fellow.”

According to biographer Perry, Ness enjoyed a drink himself, and not all the confiscated liquor found its way to the sewer. After one raid, Ness showed up at the house of an old fraternity buddy. Inside the car, his friend recalled, was “the most beautiful collection of booze in the city of Chicago.”

Ness: Try a murderer for not paying his taxes?

Accountant Oscar Wallace: Well, it’s better than nothing.

—The Untouchables (1987)

By 1931 Ness and his hardworking squad had put together a 5,000-charge indictment against Capone; most of the charges were for transporting beer illegally. But Prohibition was so despised, the US district attorney feared a jury would be sympathetic to a bootlegger. It would be much easier to convict a tax cheat, he reasoned, especially during the Depression years. Ness’s charges were never brought.

So Capone was convicted of tax evasion—$1,038,654.84 earned tax-free between 1924 and 1929—and sentenced to 11 years in prison. Nonetheless it was Ness, not the bean counters of the IRS, whose work was sensationalized in national press coverage of Capone’s downfall.

“One 28-year-old federal agent getting $2800 a year played a prominent part in gathering evidence on Capone,” the Boston Traveler reported (that’s about $42,000 today). “He was threatened, attacked, offered bribes and persistently stalked, yet on he worked, content with his $2800 a year and his conscience. His name is no secret. Gangsters know it. It is Eliot Ness, graduate of the University of Chicago.”

The press coverage often mentioned Ness’s UChicago degree, a notable accomplishment at a time when fewer than 5 percent of Americans had a college education. But in The Untouchables Fraley mentions it only in passing, in the introduction, and the University dropped out of the Ness legend.

His degree also served to contrast Ness with Capone, who had a sixth-grade education. “The big shot turns out to be just a greaseball,” the Boston Traveler gloated after Capone was arrested. “He got away with it for a while, but his doom was sealed the minute he started it. What a dumb kluck!”

Reporter: They say they’re going to repeal Prohibition. What will you do then?

Ness: I think I’ll have a drink.

—The Untouchables (1987)

The flattering press coverage of Ness continued when he accepted the job of safety director in Cleveland in 1935. Ness was responsible for the police, fire, and building departments in the nation’s sixth largest city; at 33 he was the youngest person to ever hold the post. A Chicago Daily News story about his appointment described him: “Ness, who then and now is tall, slender and handsome.”

Like Chicago, Cleveland had a large mob presence and a corrupt police force. Over a year and a half, Ness built thorough cases against cops who took bribes and brought them to trial. Again, the newspapers swooned, calling him Cleveland’s “Boy Wonder.”

Less celebrated, then or now, was Ness’s radical approach to police work, which was decades ahead of its time. In 1929 criminologist August Vollmer had joined UChicago to direct the center for the scientific study of police problems. Ness, who had graduated four years before, returned to the University to take Vollmer’s police administration course.

Known as the “father of modern law enforcement,” Vollmer devised scientific policing strategies that we take for granted today. As the police chief of Berkeley, California, at the turn of the century, he had rooted out the patronage system, sought recruits with college degrees, and instituted formal police training. He made officers more mobile (first on bikes, then in cars) and equipped the cars with two-way radios. His department was one of the first to use blood, fiber, and soil analysis in investigations.

Eliot Ness and Cleveland police captain Arthur Roth in 1940
In Cleveland Ness brought reforms that anticipated elements of modern policing. He is shown with police captain Arthur Roth in 1940. (PBDELNE CS001/CSU Archives/Courtesy Everett Collection)

In Cleveland Ness copied as many of Vollmer’s innovations as he could. At the police academy Ness established, new recruits learned how to use cutting-edge forensic science—in ballistics, fingerprint, and photographic laboratories—as well as criminal psychology.

One of Ness’s most foresighted accomplishments as safety director was his work with young gang members. “Until very recently, the police have done nothing officially to deal with the juvenile problems which are the very source of adult crime,” Ness wrote in an article for the Phi Delta Kappan, echoing Vollmer.

As critics scoffed , Ness established a juvenile bureau. Its investigators studied the area of Cleveland with the highest delinquency rate, looking not only at risk factors—saloons, poolrooms, hangouts, dance halls, “broken homes”—but also assets like churches, clubs, and playgrounds.

In those areas where gangs were active, the police approached the leaders and negotiated for their cooperation, promising to build recreation facilities and get jobs for older gang members, “the very things the fellows wanted.” More than 500 boys were placed in jobs over three years. Others were given mechanical training: “Youths who lately had used blackjacks and guns now were taught how to use slide-rules, micrometers, and lathes.”

Once the older gang members signed on, “their endorsement and active support brought the younger boys into line,” Ness wrote. He closed five underused police stations and turned them into self-governing boys’ clubs, offering sports teams, bands, and other activities. An outdoor swimming pool was built, “reinforced with iron girders taken from old police cell blocks.”

By 1939 Cleveland had reduced its juvenile delinquency rate more than 60 percent.

Chicago alderman (after Ness refuses a bribe): You’re making a mistake.

Ness: Yeah, well I’ve made them before and I’m beginning to enjoy them.

—The Untouchables (1987)

Ness’s years as safety director were not without failures. From 1935 to 1938, the notorious “Mad Butcher of Kingsbury Run” killed at least 12 people in Cleveland. The victims were found near a shantytown—so Ness took the men who lived there into custody, searched their shacks, and had the shantytown burned to the ground. The press was outraged at his cruel treatment of these “jobless and penniless men.” The murderer was never caught.

There were other controversies that undermined Ness’s squeaky-clean image. Disillusioned by his flirting and long work hours, his wife Edna divorced him, a shocking thing in largely Catholic, working-class Cleveland. In 1939 he married Evaline McAndrew (later a well-known children’s book writer and illustrator). Each checked “single” on the marriage certificate, though they were both divorced. In 1942 Ness was in a car accident after he had been drinking; when a reporter discovered his name had been left off the accident report, the story exploded into scandal.

Soon afterward Ness left Cleveland. During World War II he served as the director of the Social Protection Division in the Office of Defense Health and Welfare Services in Washington, DC. The euphemistically named division was charged with reducing sexually transmitted diseases in the military. The problem was staggering: more than 100,000 of the two million men examined for selective service were rejected because of venereal disease.

When the war ended, Ness returned to Cleveland, now married to his third wife, Elisabeth Andersen Seaver, a sculptor. In 1947 they adopted a baby boy, Robert. (In The Untouchables and 4 Against the Mob, Fraley calls Ness’s wife Betty, expunging the earlier wives from the record.) The same year, Capone died of syphilis of the brain; he had been released early in 1939 for good behavior and the state of his health.

In Cleveland Ness served as chairman of the board of safe company Diebold and ran for mayor as a Republican against a popular Democratic incumbent. He had catchy slogans—“Vote Yes for Eliot Ness,” “Ness Is Necessary”—but was soundly defeated. “The campaign was a fiasco,” a columnist for the Plain Dealer recalled years later. “He was 10 years too late to cash in on his splendid reputation.”

After that Ness’s fame faded. He was unemployed for four years before becoming president of Guaranty Paper Corporation and Fidelity Check Corporation, where he did not meet with much success. By 1955 he was deeply in debt.

That year Ness met UPI reporter Oscar Fraley, an old school friend of a colleague he had traveled with to New York on a business trip. The three men stayed up late drinking and listening to Ness share stories about the Capone days. When Fraley pitched the idea of a book about his Chicago adventures, Ness, who needed the money, agreed.

He sent Fraley his scrapbook of newspaper clippings, which he had faithfully preserved over the decades. He also sent his own version of his years on the Capone squad—just over 20 typewritten pages. “In about 1928, I was employed by the Retail Credit Company,” Ness’s less-than-arresting tale begins, “which is, as you know, a national investigation company, devoted entirely to investigations of persons applying for insurance.”

Fraley transformed these rough materials into The Untouchables. “Don’t get scared if we stray from the facts once in a while,” he wrote to Ness.

As you read the first-person story, you can practically hear it as a film noir voice-over, perhaps growled by Humphrey Bogart: “There would always be plenty of work out there in the Chicago streets for men daring enough to face it and nerves strong enough to stand it.”

A legend was born.

Al Capone: You’re nothing but a lot of talk and a badge.

—The Untouchables (1987)

In 2014 the unsung agents of the IRS finally had a chance to tell their version of the Eliot Ness story.

Three US senators—Sherrod Brown (D-Ohio), Mark Kirk (R-Illinois), and Dick Durbin (D-Illinois)—wanted to name the Washington, DC, headquarters of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after Ness. “Chicago gangster Al Capone believed that every man had his price,” Durbin stated in a press release. “But for Eliot Ness and his legendary law enforcement team ‘The Untouchables,’ no amount of money could buy their loyalty or sway their dedication.”

Alderman Edward M. Burke, an amateur historian, disagreed. He invited three retired IRS agents to testify in front of Chicago City Council’s public safety panel. The goal was to bolster his case for a symbolic resolution against honoring Ness. “Chicago should be on record telling what really happened,” said Burke, who once sponsored a resolution absolving Mrs. O’Leary’s cow of burning Chicago to the ground in 1871.

Ness “was afraid of guns and he barely left the office,” retired IRS agent Bob Fuesel told the panel. (Fuesel was too young to have met Ness personally; he heard that rumor, which contradicts innumerable accounts of Ness’s bravery, from old-timers.) The newspapers of the time had given Ness too much credit, the agents said, while downplaying the less glamorous role that the IRS played in bringing Capone to justice.

The same month that Chicago’s City Council debated Ness’s importance, Perry’s thoroughly researched biography, Eliot Ness: The Rise and Fall of an American Hero, was published. “Ever since the 1960s’ Untouchables TV series became a smash hit, debunkers have worked hard—too hard—to downplay Ness’ historical role in corralling Capone,” Perry wrote in an essay for the website Bookish. But Burke and the other aldermen apparently had not read the book. “When you look at the criticism,” Perry told the Washington Post, “it’s from people who don’t know much about him.”

A spokeswoman for the ATF, interviewed by the New York Times, would not comment on the proposed name change. But she did point out that Ness pioneered law enforcement techniques still used today—including the public relations tactics he was famous for.

In the end, nothing came of the proposal to honor Ness. Today the bureau’s website proudly decribes him as a “legacy ATF agent ... one of the most famous federal agents in the history of law enforcement.” Its profile of Ness goes on to claim that he and his Untouchables were “the enforcers who had put away Al Capone.” The legend lives on.