Robert Alt of the Buckeye Institute: Power to the States
2017-10-29 · Guest: Robert Alt (CEO of the Buckeye Institute) · 52:23
Federalism and State Level Policy Reform
Bob Zadek and Robert Alt, CEO of the Buckeye Institute, discuss the importance of federalism and the role of state-level policy in driving meaningful reform. They delve into criminal justice issues like mens rea and bail reform, as well as “union democracy,” advocating for regular recertification elections for public sector unions to ensure they remain accountable to their members.
Topics: Federalism, Criminal Justice Reform, Mens Rea, Bail Reform, Union Democracy, Public Sector Unions, Buckeye Institute, Janus v. AFSCME
Speakers: Bob Zadek, Robert Alt
The Return of Federalism [00:28]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. Thanks so much for listening. We are always the show of ideas, never the show of attitude. We are the longest-running libertarian talk radio show in California.
On this day in history, an important day, actually an important week—on this day in 1787, actually 1788, the first Federalist Paper was published. As we all may recall or have learned in school, the Federalist Papers were 85 basically op-ed pieces written by founders Madison, Jay, and Hamilton, written in New York in order to persuade New York to vote for ratification of the Constitution. They are often cited as evidence of what the founders meant when they wrote the Constitution. That citation is, in my opinion, misplaced. The Federalist Papers were written to persuade, not to educate. Indeed, in the daily blog of the National Constitution Center, they identified the Federalist Papers as essentially a public relations campaign. So take the Federalist Papers’ writing, if you will, with a grain of salt. They are not legislative history; they are simply articles of persuasion.
But we still celebrate the first writing of the first Federalist Paper on this day in 1788. I have often despaired about the amount of power concentrated in the federal government at the expense of the states and localities. That is not the system the founders had given us. The founders gave us a robust system of federalism where the states were co-equal branches of government with Washington. But it didn’t turn out that way because of a lot of Supreme Court decisions and a lot of ill-advised legislation and constitutional amendment.
But of late, my despair is being mitigated. And indeed, I find the states to be the most interesting political units in our country, not Washington. Washington has shown itself to be ungovernable, in my opinion, and all of the interesting legislative initiatives and progress are being done at the states. Look at marijuana reform, look at rejection of Medicaid by some states, criminal justice reform, right-to-work laws and the like. All the interesting initiatives in government are done at the state level. And leading that charge, leading that charge perhaps more than any other state-focused institution, is the Buckeye Institute, which operates out of Ohio. And although it is Ohio-based, its influence is national in scope.
With that introduction, I am delighted, I am honored to welcome to the show Robert Alt. Robert Alt is the Chief Executive Officer of the Buckeye Institute and has been holding that post since 2012. He founded the Buckeye Institute’s Economic Research Center, which has enormous influence and well-deserved influence on the national scene as well. Robert was a director of the Center for Legal and Judicial Studies. He served under former US Attorney General Edwin Meese, who served, of course, under President Reagan. Robert, you have the envious position of being a state-based think tank with an impressive national audience. And thank you so much for joining us this morning on the show.
Robert Alt: Well, Bob, thank you so much for having me on. And by the way, I couldn’t agree more with the statement that you made about the real action being at the state. I worked in Washington for a number of years, have worked in public policy, including out in California for many years now, and ultimately I found that you just could not get meaningful reforms done in Washington, but you can in the states. And that’s what’s exciting.
Bob Zadek: The founders, of course, worried profoundly that the system of government they were designing, the federalist system with co-equal branches of government at the federal and the state level, could not work in a very large country such as we have now. I think the founders were once again prescient and have been proven right. I do not see, just as sort of an observation, any short-term hope that any meaningful legislation—legislation that actually is sound on the merits—will come out of Washington. Yes, there might be political compromises now and again and grudgingly some compromise that may do the body politic some good, but don’t get your hopes up. Washington is dysfunctional and will remain that way perhaps forever, if not longer.
But at the states is where the action is, and the states are doing sound experimentation with wonderful results as the states learn from each other. Now, Robert, the Buckeye Institute has been a national leader, not a state leader, but a national leader in a very important area of criminal justice reform. Now, criminal justice reform is a subject which is quite interesting because it transcends typical party positions. Look at the attempt and the allegiance of Senator Rand Paul and Senator Cory Booker, a Republican libertarian and a Democrat, and they had a lot of common ground in the area of criminal justice reform. They didn’t get very far because the attention was paid in Washington to terrorist activities, and Washington does not have the ability to focus on more than one issue at a time. They are totally unable to do that. And therefore, the criminal justice reform hopes at the national level simply disappeared, at least for the minute. But not so at the state level, and thanks very much in that regard to the work of Robert Alt and his colleagues at the Buckeye Institute.
Criminal Justice Reform and Mens Rea [03:51]
Bob Zadek: Robert, tee up the issue for us, if you will. When one says “criminal justice reform,” that is, of course, not a specific topic, but that describes a series of initiatives. And whenever we see the word “reform” in the public discussion—whether it’s tax reform, whether it’s immigration reform, whatever reform it is—it is always reforming a bad government policy. Nobody ever has the need to reform any free market organizations, but we always must reform what the government has done because the government never seems to get it right. So tell us in the broadest sense, what are the topics, and then we’ll drill down. What are the important components of the broad topic of criminal justice reform?
Robert Alt: Well, there’s an array of different topics, but let’s start in general with issues related to crimes on the books and the proliferation of them, and whether or not they’ve got adequate protections for the accused. At this point, both at the state and the federal level, the number of crimes that are on the books—the things that in fact carry criminal penalties—has just absolutely exploded. And at the same time, the protections for the accused to make sure that people don’t inadvertently break the law, that they actually have some form of guilty mind or criminal intent, those requirements in the laws have been extraordinarily weakened.
And so this was actually one of the first major initiatives that we took on at Buckeye was to take a look at mens rea, the guilty mind requirement of crimes. Traditionally, to be convicted of a crime, the prosecutor had to show two things: Number one, that you committed a guilty act, that you committed the bad act. And number two, that you did so with a requisite level of a guilty mind—that this wasn’t an accident, this wasn’t inadvertent necessarily, that there was some sort of guilty mind.
But over the years, that particular requirement has been watered down. Just to give you an example, back when I was at the Heritage Foundation working for Ed Meese, we did a joint report with the National Association of Criminal Defense Lawyers. This is kind of a strange bedfellows alliance here; the NACDL traditionally much more liberal, Heritage much more conservative, but we agreed that there was a real problem with regard to criminal intent in the laws. And so we took a look at the federal level at laws introduced in a single Congress. And we found that there were 446 proposed non-violent criminal offenses in that Congress. And we found that 57% of those introduced had an inadequate criminal intent requirement. Somewhat more depressed, 64% of the laws that were actually enacted into law—so they went through the whole process and at least in theory they should have gotten better by going through the gristmill of the legislative process—64% actually enacted contained inadequate mens rea requirements.
And so this was quite disturbing, and we worked in Washington for some time to try and get some kind of a default mens rea requirement, a default requirement that said, you know, if Congress failed to put in a mens rea requirement, a criminal intent requirement, that in fact one would be put in. And weren’t able to do so. But here in Ohio, and I’m happy to chat about it, we actually were able to enact the best-in-the-nation requirement with regard to criminal intent.
Bob Zadek: Criminal intent is very important because the purpose of criminal law is to discourage people from committing bad acts. That’s why we have criminal law, so people are informed that if you do something bad, then you will go to jail. However, if you pass a statute which criminalizes an activity that is not inherently bad, then how would somebody know when they perform this act, which to them is innocent, that they are breaking the law and could have their freedom denied to them? So the very purpose of criminal law is defeated to the extent that you criminalize otherwise innocent behavior.
And it’s called at law malum prohibitum. It’s bad because the legislature says it’s bad, not because it’s morally bad. Then people are captured inadvertently by the criminal justice system, and it defeats the very purpose of criminal law. So that’s why mens rea, the topic that Robert has just raised for us, is so important. Now, tell us what you’ve been able to do at the state level to bring some sense to this.
Robert Alt: Sure. And let me take a step back because you made a great point pointing out the explosion of the malum prohibitum offenses. These are the things, as you suggested, the way I always used to describe it when I would teach criminal law: there are certain things, if you were kidnapped and you were dropped on a desert island in the middle of no place and you didn’t know where you were and you didn’t know what the laws were, there are things you would know just being dropped into that society are wrongful. A violent crime, things of that nature, you’re going to know. Don’t steal, don’t kill.
But you probably wouldn’t know whether or not form XJ6 needs to be filed on the 12th of the month in triplicate. But in fact, that latter thing could in fact be a crime; it would be a malum prohibitum offense. And what we’ve seen over the years, particularly if you take a look at the federal level, a major issue with this is the federalization of crime and the explosion of these regulatory offenses. Back in 1998, there was an American Bar Association task force that looked at the federalization of crime. This is one of these blue-ribbon panels that had folks from the left, right, and everyplace in between. And they concluded that the body of federal criminal law is so large that there is no conveniently accessible complete list of the crimes. So they went ahead and tried to catalog them, and they came up with well over 3,000 crimes. By 2007, just about 10 years later, that number had jumped to over 4,450 crimes, increasing at a rate of about 56 and a half crimes per year.
And again, a lot of these are these malum prohibitum offenses; these are the things that you wouldn’t necessarily know that are potentially regulatory. So what we did in Ohio is we took a look and we said, number one, if the legislature creates a new crime as part of a bill and it does not have a criminal intent requirement, then that crime in the bill is void. And this is the strongest medicine of anyplace in the country because it holds the legislature accountable. It makes them actually do the work of considering.
Now, they can go ahead and make the law a strict liability offense, one for which no criminal intent is required, and there are limited exceptions where traditionally legislatures have done that. But in recent years, you have a lot of bills that actually have no criminal intent requirement, and it’s not—when you take a look, it doesn’t appear that that was done deliberately. Oftentimes it’s done by accident. It’s done by sloppiness, sloppiness on the part of the legislators.
But then when the courts are looking at it and the prosecutors are looking at these questions, they take a look and say there’s no criminal intent requirement; we believe that the legislature intended for this to be a strict liability offense. And this, of course, is really dangerous when you’re thinking about the power of the state. This is the strongest medicine that the state has in its arsenal with regard to its citizens is the application of the criminal law. Through the application of the criminal law, we can take away your liberty; we can take away your life in certain states. And so making sure that we have adequate protections to assure that the accused is not subject to potential conviction for something that could have been an accident or a mere inadvertence is very important.
In case you think I’m being hyperbolic about this, let me give you a specific example of something that should scare you to death. In the state of Florida, they modified their drug possession laws a while back to make it easier to prosecute drug traffickers. And they eliminated the criminal intent requirement, so you no longer have to know that you possess the narcotics. So let me give you an example which very well could happen. You fly into Miami for a conference and you rent your car from Hertz and you’ve got their number one gold service, so you walk directly to your car. Well, little did you know there was some scheme going on in which the car you got, a drug trafficker had intended to be taken by someone else and there were drugs packed away in the spare tire. You end up speeding on the way to your conference and get pulled over. A drug dog comes and alerts to the drugs in the spare tire. You are perfectly innocent. You had no knowledge whatsoever. You didn’t know that there was anything in the spare tire other than a spare tire. Quite frankly, you probably didn’t even think about there being a spare tire in your rental car. But none of that matters. You constructively possessed the narcotics. There’s no requirement under state law that you knew or were reckless or negligent or willful in actually possessing those narcotics. And so you now have met all the elements of the offense requisite to be convicted of that crime because of the fact that the criminal intent requirement isn’t there. So that’s just one example of how important this protection is in the law.
Bob Zadek: And if you apply the test I suggested a while ago, what bad conduct have you discouraged by that statute? The answer is none, unless renting a car is a crime. That’s the only bad act you did. And that shows the importance of mens rea requirement in criminal law.
The Injustice of the Bail System [11:52]
Bob Zadek: Now, the Buckeye Institute has done some wonderful work in the area of bail reform, another area that most members of society kind of take for granted. They would wonder when I say the phrase “bail reform,” well, what’s the problem? We have bail; people get arrested, they post some money, and they get out until their trial. So bail has been kind of a stealth area of profound abuse and unfairness. Now, tell us about the problem that Buckeye has identified and what you’ve been able to accomplish in fixing this very harmful and shameful abuse.
Robert Alt: Sure, absolutely. So it’s one of the things we don’t—when you think about people being in jail, you probably think that, well, they’ve been convicted of a crime and they’re serving time, and that’s why they’re in jail. But in fact, there’s a large number of people in jail who have not yet been convicted of their crime. In fact, in Ohio at least, most of the people who are currently sitting in jail—57% on average of the people sitting in Ohio jails—they haven’t been convicted of anything. They haven’t been sentenced yet. They’re awaiting trial. These are individuals who are in pretrial detention. And oftentimes, in some cases they may have been denied bail, but in most of the cases they’re sitting there because they can’t come up with whatever the cash bail requirement is for their being released.
And one of the interesting questions is, does that correlate well with public safety? Does that correlate—again, the Supreme Court has found you can’t hold people in jail before they’ve been convicted as a punishment. We can do it in order to assure that they show up for trial, and we can do it to make sure if there’s a public safety risk associated with it. So we can do it for those two reasons, but we can’t do it as a punishment. So why is it—is the use of cash bail and the bail bond system, is that really the best way to make sure that people show up for trial and to make sure that the public is kept safe? And the answer seems to be pretty clearly no.
And you just have to look at a few examples. I mean, you’ve got people who, because they’ve got the financial means or they’re able to leverage enough funds through the bail bond system, they’re able to go ahead and post bail. And these individuals—I mean, we’ve got stories from here from Ohio that we’ve been able to highlight in which people have gone out—
Bob Zadek: Tell us about Marcus Brown. Tell us the Marcus Brown story.
Robert Alt: Sure. So you’ve got a kid here in the Dayton area. He goes to get on the bus and his clothing violates the dress code. He’s wearing a hoodie and so forth, and they claim that that violates the dress code.
Bob Zadek: There’s a dress code in the public transit system?
Robert Alt: I was unaware of this until his case, but apparently there is a dress code in the transit system. They found him in violation of the dress code, and so they picked him up for trespass. And so he was being held on a $150—he had to come up with $150 bail. His mother ended up having to get a vehicle title loan was how she ultimately was able to get the $150 to get her son out of jail. But that took, I believe, eight days. So he spent more than a week in prison because his mother was unable to come up with $150.
By contrast, you’ve got other individuals—there was someone who was accused in Pennsylvania. In that particular case, it was a very large bail that he had to come up with; I believe it was $100,000, but he was able to do so. And then upon release, he ended up committing—he was being held, I think, on a potential homicide conviction, but he went ahead and while he was on release on bail, he ended up killing someone during that pretrial period.
So again, the fact that you can come up with $100,000 bail does not necessarily mean that you’re not a threat to the community or you’re not a potential flight risk. And so what we’ve advised, rather than looking using these monetary bond payments as a basis for determining who goes to jail and who stays out, we should take a look at actual risk assessment. Is the individual a flight risk? Are they a risk to the community? Are there ways that we could actually have them in the community to where they can keep their job?
This is a major issue. Even spending a short time in jail, the risk that the individual is going to lose their job is extraordinarily high. It creates a much higher risk that they’re going to commit a new crime or another crime in the future because you’re taking away economic opportunities from the individuals. So by going ahead and creating systems whereby we actually take a look and see, is this person genuinely a risk either for flight or to the community? Is it the sort of thing where we can do monitoring with an ankle bracelet or provide some other form of checking in, which will be actually cheaper for the community and will actually allow the individual to stay in their home? All of these things end up being much more positive both for the balance sheet for the community—they’re spending a lot less to keep people sitting in jail—but you’re also allowing that individual to maintain their job, to contribute taxes.
And we’ve now experimented with this in a couple of different counties. First in Lucas County, Ohio—that’s where Toledo is—and what we found by using risk assessment toolkits that actually look at these factors, try and really tailor the release to the individual’s offense and their likelihood that they’re going to be a problem, 19% more people are showing up for court, and less crime is being committed by those awaiting trial. So by actually, rather than using sort of the blunt instrument of let’s have people pay to get out of jail, let’s actually take a look and make it—release more people on their own recognizance, release more people with some modest monitoring, you’re able to save money, you’re able to have more people show up for jail, and you’re actually having less crime committed. So we’re now experimenting with expanding it to Cuyahoga County as well, which is where Cleveland is, and we’re hoping to go statewide with this reform.
Bob Zadek: And the lesson that I get from this and hearing these important stories is that you are really doing the work that one would have expected—but perhaps the expectation is unreasonable—that the legislature would do that before it enacted the legislation to begin with. But they don’t, and that’s asking too much. That’s asking legislatures to be knowledgeable on too many areas. So therefore, you pick up the pieces where the legislature messed up. And one would hope—and I’ll ask you for just a brief report—that when you come up with findings that are objectively the correct fix, are the legislatures receptive, or are there huge existing power blocks such as the bail bondsman association (I’m making that up) who will resist you? What has been the level of success you have enjoyed both in Ohio and then when you succeed in Ohio, how successful have you been in inviting other states to observe and adopt what Ohio has learned to do right?
Robert Alt: Generally speaking, I think that the legislators have been somewhat receptive. I think it’s actually very useful. These are issues, interestingly enough, where you can actually pull together a bipartisan coalition. These are issues where I can get groups from on the left and the right to come together. Oftentimes the opponents that you have in terms of groups, frequently the prosecutors end up being reluctant to move forward with these reforms. But I’ll say on mens rea reform, the prosecutors ultimately ended up—I don’t know that they were the most enthusiastic cheerleader on it, but they ultimately ended up agreeing to the reforms that we were able to formulate.
On bail reform, yes, you identified the bail bondsman actually are a massive lobby against this particular issue. This is something where they’ve recruited, I understand, Dog the Bounty Hunter from the reality show has been speaking out against these kinds of reforms. But nonetheless, I think the legislature in general has been fairly receptive over time. The difficulty that you actually have oftentimes is getting past the initial knee-jerk “tough on crime” response. And part of that is I still think it’s relatively popular, whether you’re in Congress or in a state legislature, to be seen as tough on crime. And it still is the case that if something bad happens on the news, if there’s a heinous crime or there’s some particular issue, one of the ways frequently that legislators show that they’re taking that issue seriously is to create a crime to address whatever it is.
At this point in our history, most of the time when something bad happens, there’s already a crime on the books that covers it. If you look at—there was definitely a desire and a move post-the financial crisis to create new financial regulatory crimes. But if you look on the federal books, there’s over 100 different fraud crimes already in federal statute. And we’ve got numerous fraud crimes in Ohio. You don’t need to create a new fraud crime every time fraud is committed. There are ample laws on the books to address this. But that definitely is the instinct. And oftentimes these laws that are written very quickly when some kind of a tragedy happens, oftentimes they’re poorly written. These are the things where they sloppily leave out the mens rea requirement and the like. So that’s probably one of the bigger things that we push back against is just this knee-jerk impulse to criminalize to show that you’re tough on crime rather than creating a criminal justice system that protects society from those who pose grave dangers to the society while protecting the rights of individuals and of the accused.
Bob Zadek: And the important lesson we can learn from Robert this morning is how very important organizations such as the Buckeye Institute are to correct the mistakes made by the elected legislators in enacting laws in response to media headlines. Without the Buckeye Institute and many other think tanks of the same type at the state level, we’d be in a real pickle.
Union Democracy and Worker Voting Rights [20:11]
Bob Zadek: Now, Robert, another area where Buckeye has been very effective is in the area of—and this is almost an oxymoron—union democracy and union members’ rights. When I learned about this issue, it occurred to me that union leadership has achieved the status of the House of Lords. They serve for life. They are unelected, unresponsive. So while the founders’ men died at Valley Forge so we don’t have a peerage society where we have titles granted for life, they lost the battle insofar as union leadership is concerned. Tee up the issue for us, if you will, and tell us what Buckeye has been attempting to do and where you have achieved some level of success in Ohio on the issue of enfranchising now-disenfranchised union members. Is it public service unions only or private unions as well? And what has Buckeye been successful or what are you hoping to be able to accomplish in this important area?
Robert Alt: So going back to—this is public sector unions only. So again, these are individuals who work for the government at the state or local level, which could include your public school teachers. It also would include the folks who work for the state agencies. Federal law permits the state to grant to public sector workers worker voting rights, which is to say to hold regular periodic elections for the unions to determine whether or not they wish to keep them, to get rid of those unions. It also creates the opportunity that they could vote another union in to represent them.
And not surprisingly, union workers believe that these regular periodic elections would create much greater accountability. 85% of union households believe that holding these regular periodic elections would give them accountability over the unions, which currently the unions even acknowledge they’ve been relatively unaccountable. If you go to our website, workervotingrights.org, you can see we’ve got quotes from the heads of some of the major public sector unions when these sorts of campaigns have been conducted in the past, and they admit, “Yeah, we’ve taken our members for granted. We weren’t even communicating with them well.” Which at a certain level, I suppose, makes sense. If you had one of these one-and-done elections where you’re this heirloom union that’s handed down and it doesn’t matter whether you provide good service, bad service, or no service at all, you still are going to be the representative for that bargaining unit. You don’t really have all that much incentive to do a good job, to be representative of the interest of your members.
And I think because of that, that’s how we’ve seen dissatisfaction grow in the union worker ranks and them straying perhaps from the core mission of unions into oftentimes more political activities. This actually provides that accountability and it also provides the opportunity for competition. Again, you can actually potentially have another union voted in by the membership if they’re able to have these regular periodic elections. It works in private industry. We’ve seen the example I always give is we all remember the bad old days of the cable companies where there was one cable company that operated in your neighborhood and you’d call them up to see about getting installation and they’d give you a time frame of sometime between 12:00 Tuesday and 5:00 the following Thursday that they would come out and maybe they’d come and maybe they wouldn’t and you’d wait around all day. Now, of course, they give you a two-hour time window, they text you when they’re on the way, the price keeps on going down, the service keeps on improving. It’s a function of the fact that they now have to compete against the satellite companies and against the telecom companies. Competition is good. It improves service and it reduces price. And I think you’d see the same thing happen among the unions if they actually had to fight among themselves to keep bargaining status with regard to the groups they’re representing. And that would genuinely empower those workers with a voice and a choice with regard to their representation.
Bob Zadek: And what’s important is all you are doing—this is not anti-union per se. It is anti-serve-for-life unions. And all you are seeking to do is to give union members a choice, like the rest of society has, opening up union elections to the marketplace and let the best union prevail. How could anybody be against that, including union members? But once again, you have a very strong political lobby opposing what you want to do.
The Impact of Janus and Future Reforms [34:10]
Bob Zadek: Robert, what successes have you achieved or do you expect to achieve in bringing union democracy to public service unions? And if you do achieve those results, are you optimistic that other states will follow Ohio’s lead?
Robert Alt: So this is a campaign we’ve just launched in Ohio. But our business model, as you’re suggesting, is to take our ideas and to market them not just in Ohio but in states across the country. We’re based in Ohio and certainly that’s our primary focus, but through our Economic Research Center and other centers, we seek to have impact in states across the country. And so we have the website workervotingrights.org where we encourage folks from states across the country to take a look, learn more about the issue, and if you’re interested in promoting it in your state, reach out to us and we’re happy to work with folks in other states as well.
This is an idea that’s taken hold in a few states already. Tennessee actually has worker voting rights for teachers; the teachers’ unions have to stand for reelection every three years. In Wisconsin, they passed a provision that requires the public sector unions to stand for regular reelection. And Iowa recently passed a similar provision. And going to your point previously, there’s been very different results. In some states, the workers have voted out their unions. In recent elections in Iowa, the unions did very well in being reelected as the bargaining representatives. But the key really is empowering the workers, giving them a voice and a choice, and letting them exercise their rights with regard to free association as to whether or not they wish to continue working and being associated with the union and paying those dues.
So we’re very hopeful that we’ll be able to pass major reform like that in Ohio. My sense is this is something that’s going to be important however that Janus case comes out. Even if right-to-work ends up being the law of the land, you still shouldn’t be forced and stuck with, if you want to have a union, you shouldn’t be stuck with that particular union. You should have the opportunity to vote for which union represents you. I think that goes to the core of just basic fundamental fairness. It goes to associational rights, and Buckeye is intent on helping workers be able to exercise those rights.
Bob Zadek: So if you are a public service union member listening to my show or listen to the podcast, be advised the Buckeye Institute and we libertarians, we have your back. So follow this important development in Ohio and throughout the country. Robert, we have to say goodbye now. This is Bob Zadek saying thanks so much for Robert Alt and more importantly even, thanks so much for the great work of the Buckeye Institute in Ohio. I’ll be back next Sunday for another hour of libertarian thought and opinion. Always ideas, never attitude. I’ll see you next Sunday.