Bottleneckers. William Mellor
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caskets easily seen. Inexpensive caskets—if they were displayed at all—were often stored out of sight or presented in an unappealing manner. Funeral directors manipulated mourners with comments such as: “This is the last act you can perform for your mother”; “He deserves something better than that”; and “Consider what the neighbors will think when they see the casket.”27 Worst of all, funeral establishments made the purchase of a casket the precondition of providing body handling and other services that they alone could offer, a practice known as “bundling.” If a customer tried to purchase a casket elsewhere, funeral directors would refuse to provide these services.
Known as the Funeral Rule, the regulations adopted by the FTC attempted to restrict such practices. The rule states that: (a) consumers have the right to choose only the funeral goods and services they want; (b) funeral homes must provide a general price list (GPL) of goods, services, and prices; and (c) funeral providers must state the right of consumer choice in writing on the GPL. The regulations further prohibit: (a) misrepresenting embalming as being legally required or necessary (it is not), (b) misrepresenting a casket as being required for direct cremation, (c) misrepresenting any funeral goods or services as having protective or preservative abilities (this is not the case), (d) charging for embalming without permission to perform the service, and (e) subjecting consumers to bundling arrangements.28
The economic advantage bundling and other practices provided to funeral directors was evident in their reaction to the rule. From its conception, the rule was met with strenuous resistance by funeral directors and their trade associations, state funeral boards (usually composed of funeral directors), and members of peripheral industries that served the funeral industry.29 These groups inundated the FTC with written comments while the rule was being considered,30 and upon its adoption, they challenged it in court on evidentiary, policy, procedural, statutory, and constitutional bases.31
Funeral directors also vigorously lobbied members of Congress against any regulation by the FTC,32 finding a champion in Representative Marty Russo, who sponsored legislation prohibiting the FTC from implementing the rule.33 The eventual result was the FTC Improvements Act of 1980,34 which forced the commission, when regulating, to comply with elaborate rule-making procedures and submit them for public comment before final rules could be promulgated. The effect was to directly limit the FTC’s power over the industry. The delay tactics produced yet more opposition commentary by the funeral industry, but in 1984 the Funeral Industry Practices Rule, or Funeral Rule, was finally put into full effect.35
The response was predictable and swift—a separate marketplace for funeral goods sprang up in which independent casket retailers began offering caskets at prices much lower than those offered by funeral homes.36 In typical bottlenecker fashion, however, funeral directors struck back by charging fees for “handling” caskets that were purchased through third-party vendors.37 As one funeral director wrote in a trade magazine, “the selection room,” referring to the room where caskets are displayed for consumer purchase, is after all “the only room in the entire funeral home where we make our money” (emphasis in original).38 The handling fees came to the attention of the FTC during a rule-making review, and the commission began a process to amend the rule to prohibit the practice. Again, the funeral directors organized to fight the amendment, but their efforts were rejected in the courts.39
In many—but not all—states, the Funeral Rule resulted in additional entrepreneurs offering more choices for consumers. Over the years, legislators in a dozen states specified in their laws that only licensed funeral directors could sell funeral merchandise, such as caskets. Bottleneckers’ fingerprints were often all over such laws. Georgia’s law, for example, came about after a cemetery owner began infringing on what the funeral directors considered their turf by selling caskets. Funeral directors responded by pressing for a law limiting the ability to sell to licensed funeral directors, and the legislature quietly obliged in 1992.40 The legislation’s two sponsors—Senator Wayne Garner and Representative Jimmy Lord—happened to be funeral directors themselves. They successfully created the casket bottleneck, which went almost completely unnoticed.41
When Lord first introduced the legislation, it was a minor bill that dealt only with funeral home apprentices. It breezed through the House on a vote of 106–2 and then moved to the Senate. It was assigned to the Governmental Operations Committee, an odd placement, except that the committee chair—Senator Culver Kidd—shared some of his Senate district constituents with Lord’s House district. The bill was allowed to lie dormant in committee for two months. Then, as one observant funeral-industry lobbyist noticed, the committee altered it in a way that he cryptically described as “a substitute [that] was presented to the committee.”42 Included in the substitute legislation was the casket restriction. The bill passed the committee, the Senate, and the House, all without dissent. Indeed, it is likely no one else in the legislature even realized a monopoly was being created. As the editorial page editor of the Atlanta Journal-Constitution wrote, “A monopoly was created and probably not more than four people knew it was happening—three legislators and a lobbyist.”43
“ROBBERY WITHOUT A PISTOL”
In Pastor Craigmiles’s home state of Tennessee, the restriction on casket sales likewise owed its genesis to a state legislator who was a longtime funeral director—Senator Fred O. Berry. In 1972, Berry—a second-generation funeral director—led a successful push to amend the Funeral Directors and Embalmers Act (FDEA), which Tennessee had passed in 1951, and to restrict the selling of funeral merchandise to licensed funeral directors. He was joined by other state senators and representatives who were also licensed funeral directors.44 Typical of bottleneckers, Berry supported his bill by appealing to the need to protect the public from “very unscrupulous people.” A funeral director colleague in the House, Representative Perry Coffey, was more candid about the bill, objecting to anyone being able to sell funeral merchandise, suggesting that “they are infringing on funeral directors, we think.”45
By the time Pastor Craigmiles began looking into the funeral industry, the anticompetitive measures like those advocated by Berry and his colleagues were already having their intended effects. One analysis estimated that funeral homes under a regime of licensure charged approximately 11 percent more than retailers not burdened by licensure.46 Another study found an even-greater disparity—68 percent—when comparing the prices of caskets sold in funeral homes to those available through Internet casket sellers.47
For Pastor Craigmiles, it was “robbery without a pistol,”48 especially for the modest-income parishioners he served. When he began pastoring in 1988, his congregation comprised just fourteen people. By the time he retired, his church had grown to more than four hundred members. The core of its membership included many poor and uneducated members of the community who came to the church off the street. In Pastor Craigmiles, the parishioners of Marble Top Missionary Baptist Church found not a man of inaccessible piety but one of their own who had turned away from his own life on the street in order to care for his family and heed a call to ministry, which might have surprised those who knew him before he settled down in Tennessee.
Although Craigmiles was born and raised in Chattanooga, he eventually left his hometown to serve in the military in Vietnam and then settled in Boston, where his life took a dark turn. He began associating with a criminal element in the city and over time began laundering money for the mafia. Making matters worse, a recreational drug habit turned into a gripping heroin addiction, and he tumbled out of control, finally landing in both state and federal prison. The man who emerged from prison was not the same as the one who entered it. Unlike many who grow hardened and embittered, Craigmiles gave his life over to God, resulting in a radically changed life and, unlike so many who leave incarceration, a successful transition back into society.
After his father died in 1983 and his mother became ill, he returned to Chattanooga to care for her. She died just a few years later, but by then he had decided to remain in Tennessee. There, he married, raised a family, and began pastoring a growing-yet-needy flock, caring for church members at the beginning of their lives and at the end. For a decade, he presided over the funerals of church members, unaware of what