Power to the States

Robert Alt of the Buckeye Institute says there is reason to be optimistic about state-level politics

Guest: Robert Alt, President and CEO of the Buckeye Institute

Interview Date: October 29, 2017

Bob Zadek: On this day — October 29, 1787 — the first Federalist Paper was published. The Federalist Papers were 85 op-ed pieces written in New York by the founders — James Madison, John Jay, and James Hamilton –in order to persuade the state to vote for the ratification of the Constitution.

The Federalist Papers are often cited as evidence of what the founders meant when they wrote the Constitution. That is misplaced in my opinion. The Federalist Papers were written to persuade, not to educate. The daily blog of the National Constitution Center identified the Federalist Papers as essentially a public relations campaign.

Take them with a grain of salt — they are not legislative history. They are simply articles of persuasion. However, we still celebrate the writing of the first Federalist Paper today.

I have often despaired about the amount of power concentrated in the Federal Government at the expense of the states and localities. This is not the system the founders gave us — they gave us a robust system of federalism, where the states were to be co-equal with Washington. However, it did not turn out that way due to several Supreme Court decisions and some ill-advised legislation and Constitutional amendments.

Lately, my despair is being mitigated. Indeed, I find that the states are the most interesting political units in our country. From marijuana reform, to the rejection of Medicaid, to criminal justice reform and right-to-work laws — all the interesting initiatives are taking place at the state level.

Leading that charge more than any other state-focused institution is The Buckeye Institute, operating out of Ohio. Although it is Ohio-based, its influence is national in scope.

I am delighted to welcome Robert Alt to the show. Robert has been the Chief Executive Officer of the Buckeye Institute since 2012 when he founded the Buckeye Institute’s Economic Research Center, which has an enormous and well-deserved influence on the national scene. Robert was a director of the Center for Legal and Judicial Studies. He served under former U.S. Attorney General Edwin Meese, who served under President Reagan.

Robert, you have the envious position of being a state-based think tank with an impressive national audience. Thank you for joining us this morning on the show.

Robert Alt: Thank you for having me on.

I couldn’t agree more that the real action is at the state level. I worked in Washington for a number of years. I’ve worked in public policy, including out in California, for many years now. Ultimately, I found that you just could not get meaningful reforms done in Washington, but you can at the state level.

Bob Zadek: The founders worried profoundly that the system of government they were designing — a federalist system with co-equal branches of government at the federal and the state level — could not work in a very large country like the one we have now. I think the founders have been proven right. I do not see any short-term hope of any meaningful legislation coming out of Washington.

Yes, there might be political compromises now and again 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. The states, on the other hand, are doing sound experimentation with wonderful results.

State Experiment #1: Criminal Justice Reform

Bob Zadek: The Buckeye Institute has been a national leader in criminal justice reform. This subject is quite interesting because it transcends typical party positions. Look at the allegiance of Senators Rand Paul and Cory Booker — a libertarian Republican and a Democrat respectively who share common ground on criminal justice reform. They didn’t get very far because all of the attention in Washington was paid to terrorist activities, and Washington does not have the ability to focus on more than one issue at a time. Therefore, the criminal justice reform hopes at the national level disappeared — at least for the moment.

Not so at the state level.

When one says, “criminal justice reform,” that describes a series of initiatives. Whenever we see the word “reform” in the public discussion, whether it’s tax reform or immigration reform, it is always reforming a bad government policy. Nobody ever needs to “reform” a free market organization, but we must always “reform” what the government has done. What are the broad issues within criminal justice reform?

Robert Alt: Let’s start with the proliferation of crimes on the books and whether or not there are adequate protections for the accused. At both the state and the federal level, the number of crimes that carry criminal penalties has exploded. At the same time the protections for the accused — requirements that people actually have some form of guilty mind or criminal intent — have been extraordinarily weakened. One of the first major initiatives that we took on at Buckeye was looking at mens rea, or the guilty mind requirement of crimes.

Traditionally, to be convicted of a crime, the prosecutor had to show two things. One, that you committed a guilty act, and two, that you did it with a guilty mind. This wasn’t an accident.

Over the years this particular requirement has been watered down. For example, when I was at the Heritage Foundation working for Edwin Meese, we did a joint report with the National Association of Criminal Defense Lawyers — a strange bedfellow alliance. The NACDL has a much more liberal slant and we are much more conservative, but we agreed that there was a real problem with regard to criminal intent, so we took a look at laws introduced in a single Congress.

We found 446 proposed nonviolent criminal offenses. 57 percent of those introduced had an inadequate criminal intent requirement. Even more depressing, 64 percent of the laws that were actually enacted contained inadequate mens rea requirements. This was quite disturbing. We worked in Washington for some time to create a default mens rea requirement. If Congress failed to put in a mens rea requirement, this default would be put in. We were not able to do so in Washington, but here in Ohio we actually were able to enact the best requirement with regard to criminal intent in the nation.

Bob Zadek: Criminal intent is important, since the purpose of criminal law is to discourage people from committing bad acts. 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 that this innocent act is in fact illegal?

The very purpose of criminal law is defeated to the extent that you criminalize otherwise innocent behavior. “Bad” is known instinctively in every society. But when you criminalize otherwise innocent behavior, it is called malum prohibitum, meaning “bad only because it is prohibited by law.” People are captured inadvertently by the criminal justice system, defeating the very purpose of criminal law. That’s why mens rea — the topic that Robert has just raised for us — is so important. Tell us what you’ve been able to do at the state level to bring some sense to this.

Robert Alt: You made a great point in noting the explosion of the malum prohibitum offenses. When I taught criminal law, I described it as follows: if you were kidnapped and dropped on a desert island in the middle of nowhere and didn’t know what the laws were there, there are some things you would know were wrong, like violent crimes. You are going to know not to steal.

You probably won’t know, however, whether or not Form XJ-6 needs to be filed on the 12th of the month in triplicate. But in fact, that lighter thing could in fact be a crime. That would be malum prohibitum.

The major issue is the federalization of crime and the explosion of these regulatory offenses. In 1998, there was an American Bar Association task force — these blue ribbon panels, with folks on the left and right — and they concluded that the body of federal criminal law is so large that there is no conveniently accessible and complete list of the crimes. They tried to catalog them and came up with well over 3,000 crimes. By 2007 that number had jumped to over 4,450 crimes, increasing at a rate of about 56.5 crimes per year. Many of these are malum prohibitum offenses, many of which are regulatory.

In Ohio, we said that if the legislature created a new crime as part of a bill and it does not have a criminal intent requirement, then the crime in the bill is void. This is the strongest medicine of any place in the country because it holds the legislature accountable. It makes them actually do the work. They can make the law a strict liability offense, or one for which no criminal intent is required — there are certain limited exceptions where legislators have done that.

In recent years, however, you have had many bills that actually have no criminal intent requirement. It doesn’t appear that that was done deliberately. Oftentimes it is done by accident or due to sloppiness on the part of the legislators. However, when the courts and the prosecutors are looking at these questions, they say, “There is no criminal intent requirement, and we believe that the legislature intended for this to be a strict liability offense.” Of course, this is really dangerous when you think about the power of the state. The application of the criminal intent requirement is the strongest medicine that the state has in its arsenal with regard to its citizens. It can take away your liberty and even your life in certain states. It’s very important to make sure that we have adequate protections to assure that the accused are not subject to potential convictions for something that could have been an accident.

In case you think I am being hyperbolic about this, let me give you a specific example that should scare you to death. In the state of Florida, they modified their drug possession laws to make it easier to prosecute drug traffickers. They eliminated the criminal intent requirement, so you no longer have to know that you possess the narcotics.

Let’s say you fly into Miami for a conference and rent your car from Hertz and you have the #1 Gold Service, so you walk directly to your car. Little did you know, there was a scheme going on where the car was intended to be taken by someone else (a drug trafficker), 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 the officer to the drugs in the spare tire. Even though you are perfectly innocent and have no knowledge whatsoever of there being drugs in your rental car, none of that matters. You constructively possessed the narcotics. Since there’s no requirement under state law, of knowledge or negligence regarding possession of those narcotics, you have now met all the elements of the offense requisite to be convicted of that crime. That’s just one example of how important this protection is in the law.

Bob Zadek: What bad conduct have you discouraged by that statute? The answer is “none,” unless renting a car is a crime. That is the only “bad act” you did. That shows the importance of the mens rea requirement in criminal law.

To libertarians, protecting our life and liberty from harm is the core role of government. When the government becomes the entity that denies you your liberty, then what is left? Nothing is left. That is why this issue of criminal justice reform is so important.

State Experiment #2: Bail Reform

Bob Zadek: The Buckeye Institute has done some wonderful work in the area of bail reform — another area that most members of society take for granted.

When I say the phrase “bail reform,” they think “What is the problem? People get arrested, they post some money, and they get out until their trial.” But the bail system is a stealth area of profound abuse and unfairness. Tell us the problem that Buckeye has identified and what you have been able to accomplish in fixing this very harmful and shameful abuse.

Robert Alt: When you think about people being in jail, you probably think they have been convicted of a crime and are serving time. In fact, there are a large number of people in jail who have not yet been convicted of that crime. In fact, 57 percent of people in Ohio jails haven’t been convicted of anything. They haven’t even been sentenced yet. They are simply awaiting trial. These individuals are in “pretrial detention.” In some cases, they may have been denied bail, but in most of the cases they are sitting there because they cannot come up with whatever the cash bail requirement is for their release.

Does this correlate well with public safety? The Supreme Court has found that we cannot hold people in jail before they have been convicted as a punishment, but we can do it in order to ensure that they show up for trial or to make sure the public is safe. Is the use of cash bail and the bail bond system really the best way to make sure that people show up for trial and to ensure the public is kept safe? The answer seems to be pretty clearly “no.”

Bob Zadek: Tell us the Marcus Brown story.

Robert Alt: A kid from the Dayton area gets on the bus, and his clothing violates the dress code because he is wearing a hoodie.

Bob Zadek: There is a dress code in the transit system?

Robert Alt: There is a dress code in the transit system, which I was unaware of as well before this case. They found him in violation of the dress code so they picked him up for trespassing. He was being held on $150 bail. His mother ended up having to get a vehicle title loan, which was how she was ultimately able to get the $150 to get her son out of jail, but that took eight days. So, he spent more than a week in prison because his mother was unable to come up with a $150.

By contrast, you have another instance, for example, where someone in Pennsylvania paid a bail of $100,000 for homicide, and then upon release ended up killing someone before the trial. Just because you can come up with $100,000 bail does not necessarily mean that you are not a threat to the community or a potential flight risk.

We have advised, rather than using these monetary bond payments as a basis for determining who goes to jail and who stays out, that we should take a look at actual risk assessments. Is the individual a flight risk? Are there risks to the community? Are there ways that we could actually have them in the community where they can keep their job?

This is a major issue. The risk that the individual is going to lose their job is extraordinarily high even if they spend only a short time in jail. It actually creates a much higher risk that they’re going to commit a new crime or another crime in the future, because by putting them in jail you are taking away economic opportunities. We hope to prevent this by creating systems whereby we actually ask whether this individual is genuinely a risk either for flight or to the community. Also, we can monitor the individual by an ankle bracelet or have some other form of check-in, which will be cheaper for the community and will actually allow the individual stay in their home.

All of these things end up being much more positive both for the balance sheet and for the community.

We are spending a lot less to keep people sitting in jail, but we are also allowing that individual to maintain their job to contribute taxes. We’ve now experimented with this in a couple of different counties. The first was in Lucas County, Ohio. We found that by using risk assessment tools that actually look at these factors to tailor the release of the individual, 19 percent more people are showing up for court and less crime is being committed by those awaiting trial. The city saves money, more people show up for court, and less crime is being committed. We are hoping to go statewide with this reform.

Bob Zadek: The lesson that I get from hearing these important stories is that you are really doing the work that one would have expected that the legislature would have done before it enacted the legislation to begin with, but that is asking too much. That is asking legislatures to be knowledgeable of too many areas, so you therefore picked up the pieces where they messed up.

One would hope that when you come up with findings that are objectively the correct fix, the legislatures would be receptive. Are there large power blocks such as the bail bondsman association who will resist you, or am I making that up?

Also, what has been the level of success you have enjoyed both in Ohio? How successful have you been in inviting other states to observe and adopt what Ohio has learned to do right?

Robert Alt: You actually hit the nail on the head with a few things, but generally speaking, I think that the legislators have been somewhat receptive. These are issues where you can actually pull together a bipartisan coalition. I can get groups on the left and the right to come together. Oftentimes, the opponents are the prosecutors.

The prosecutors ultimately ended up being enthusiastic cheerleaders of the mens rea reforms, but on bail reform the bail bondsmen lobby against us. Dog the Bounty Hunter from the reality television show has been speaking out against these reforms.

Nonetheless, I think the legislature has been fairly receptive over time. Oftentimes, the difficulty is getting past the initial knee-jerk “tough on crime” response. It is popular, whether you are in Congress or in a state legislature, to be seen as tough on crime. If something bad happens on the news — some heinous crime or some particular issue — legislators can show that they are taking that issue seriously by creating a new crime to address whatever it is at this point in our history.

Most of the time when something bad happens there is already a crime on the books that covers it. There was a desire and a move post-financial crisis to create new financial regulatory crimes. But if you look on the federal books, there are over a hundred different fraud crimes already in the federal statutes. We have numerous fraud crimes in Ohio, so you don’t need to create a new crime every time fraud is committed. Yet the instinct is still to create new laws and new crimes.

These laws are often written very quickly and very poorly. This is when the mens rea requirement is left out. We push back against this knee-jerk impulse to show that you are tough on crime rather than creating a criminal justice system that protects society from those that pose grave dangers to it, while protecting the rights of individuals and of the accused.

Bob Zadek: The important lesson that we can learn from Robert this morning is how important organizations such as the Buckeye Institute are for correcting the mistakes made by the elected legislators in enacting laws in response to media headlines. Without the Buckeye Institute and other state-level think tanks, we would be in a real pickle.

State Experiment #3: Union Voting and Right-to-Work Laws

Bob Zadek: Buckeye has also been very effective is in the area of “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 and unresponsive. The founders sacrificed and those men died at Valley Forge so that we wouldn’t have a peerage society with titles granted for life. However, they lost the battle insofar as union leadership is concerned. Tell us what Buckeye has been doing to give union members some rights.

Robert Alt: I am guessing your listeners will be as astounded as I was when I heard that 94 percent of union members across the country do not have the right to vote for their union representation. These representatives are voted in for perpetuity. You have these one-and-done elections where the union is elected and there is no future vote as to whether or not to keep the union, get rid of it, or have the option of a different union representing the bargaining unit.

To give one example, in Columbus, Ohio the Columbus Teacher’s Association is the local teacher’s union. They were voted into place in the late sixties, back when Nixon was the President and the Beatles were still together. If you happen to walk into the local elementary school here in my neighborhood, the teacher up at the front of the classroom was likely not born in 1968 when the union was voted in as the bargaining representative. So not only did they never have the opportunity to vote, they couldn’t have because they weren’t even alive.

Fundamentally, I think we can all recognize that this is not fair. It is particularly unfair in states like California or Ohio, which aren’t right-to-work states. As you know, that means that paying your union dues or agency fees are a condition of your employment. If you fail to do so, the employer is required to fire you — all for not contributing to an organization that you never had the opportunity to vote for.

Bob Zadek: In California you have been involved with Rebecca Friedrichs, a teacher in California who was a guest on my show right before her case was to be heard in the U.S. Supreme Court. She is attacking the very policy that Robert identified. She was likely to win on a 5–4 vote, which would have been a death knell to the public service unions. This was virtually one week before Justice Scalia died in Texas, so there went her victory. The case was sent down by the Supreme Court because it was too important. So, we will learn if Scalia’s death will affect the outcome.

Robert Alt: I have known Rebecca Friedrichs now for some time. I was actually at the court the day her oral arguments took place. It is always dangerous to try and make predictions from oral arguments, but it seemed like she had the five votes necessary prior to Justice Scalia’s passing away.

The court took a second bite at this case in the Janus v. ASFCME case, which involves an employee who works essentially for the welfare department in Illinois. It raises the same claims, which is whether the plaintiff should be compelled to speak as a public employee, to and take positions that he may disagree with. If Mr. Janus is successful, then it would potentially create nationwide right-to-work for public sector employees. This finding would be that unions violate their first amendment rights by telling them they have to speak by giving dues or agency fees to the unions.

Bob Zadek: This raises both first amendment “freedom of association” and “freedom of speech” rights. Tell us about what the Buckeye Institute has been attempting, and where you have achieved some level of success in Ohio on the issue of enfranchising — now disenfranchising — union members. Is it public service unions only or private unions as well? What are you hoping to be able to accomplish in this important area?

Robert Alt: These are public sector employees only. These are individuals who work for the government at the state or local level, which could include your public school teachers and the folks who work for the state agencies. Federal law permits the states to grant voting rights to public sector workers, which is to say, the rights to hold regular periodic elections for the unions to determine whether or not they wish to keep them. It also creates the opportunity to vote for another union to represent them. Not surprisingly, union workers believe that these regular periodic elections would create much greater accountability. 85 percent of union households believe that holding these regular periodic elections would give them accountability over the unions, which currently they simply do not have.

If you go to our website, workervotingrights.org, you can read quotes from the heads of some of the major public sector unions when these sorts of campaigns have been conducted in the past. They admitted they have taken their members for granted. Considering they have life terms this makes some sense. They have very little incentive to be representative of their members and do a good job. Because of that, we have seen dissatisfaction grow in the union worker ranks.

This provides accountability and competition, since elections allow the membership to potentially vote in another union. Competition works in private industry, so it could work with unions as well.

Bob Zadek: This is not anti-union per se. It is anti-serve-for-life. All you are seeking to do is to give union members a choice like the rest of society has. You want to open up union elections to the marketplace and let the best union prevail. How could anybody be against that, including union members? Once again, you have a very strong political lobby opposing what you want to do. What successes have you achieved, or do you expect to achieve? Are you optimistic that other states will follow Ohio’s lead?

Robert Alt: We just launched this in Ohio, but our business model is to market our ideas across other states. We seek to have an impact in states across the country through our Economic Research Center. This idea has taken hold in a few states already. Tennessee has worker voting rights for teachers unions. The teacher unions have to stand for reelection every three years in Wisconsin, as well. Iowa recently passed a similar provision, and the workers have voted out their unions. In recent elections in Iowa the unions did very well in being re-elected as the bargaining representatives. The key is empowering the workers and giving them a voice and a choice.

However the Janus case comes out, even if right-to-work ends up being the law of the land, you still should not be forced and stuck with that union, and should be able to vote for which union represents you. This goes to the core of fundamental fairness and associational rights, and Buckeye is intent on helping workers exercising that right.

Bob Zadek: If you’re a public sector union member listening to my show, be advised that we libertarians and the Buckeye Institute have your back.