Sentencing, prison growth and the drug war
In the 2015 episode with Lucy Steigerwald, mandatory minimums are introduced as one element of a broader account of incarceration in the United States. Steigerwald says the increase in the prison population began to explode three decades earlier, when Ronald Reagan decided to militarize the war on drugs, and she gives figures: 2.3 million people in prison and jails today, against something like 300,000 prison-wise three decades ago. Within that same passage she lists mandatory minimums among the mechanisms that kept people in prisons for longer for drug and non-violent gun crimes, alongside civil asset forfeiture, which she says directly prioritizes police toward drug crimes because they can benefit through seized cash or materials, cars, and other property sold for revenue. Her summary of the system is that it is set up to prioritize non-crimes. Lucy Steigerwald on The Drug War and Private Prisons (2015)
Bob Zadek frames the same material in terms of capture. He asks whether the criminal justice system, designed to protect the public, has been captured by the war on drugs and diverted from protecting people from bad guys to the political activity of the war on drugs, at great expense and compromise of safety, and he asks whether the prison system has been captured in the same way. Steigerwald agrees, with a caveat: it is not just drugs, and there are serious issues in every facet of the criminal justice system, including murder trials. She also names who does not lose: Bob says it is a disaster for everybody except the Corrections Corporation of America and the California Prison Guards Union. Lucy Steigerwald on The Drug War and Private Prisons (2015)
Later in the same episode, Bob returns to sentencing directly, saying that with the sentencing guidelines and the sentencing regime, liberty is taken away at the drop of a hat and someone is locked in a cage and stripped of their humanity for an indefensible reason. Steigerwald answers that mandatory minimums and general sentence inflation have warped people’s ability to understand how long and how big a deal going to prison is, and that the cavalier attitude — that someone only got five years or three years for growing a marijuana field — reflects a lost sense of what prison means. She argues prison should be saved for the really serious stuff, so that resources exist to make sure somebody really did murder somebody, and that for a non-violent person, even a thief, the conversation should be about restitution to the victim rather than the state punishing an oath violated against the state. She invokes the voluntarist formulation “no victim, no crime.” Lucy Steigerwald on The Drug War and Private Prisons (2015)
Bob supplies the Latin framing around that phrase: the purpose of government is to protect life, liberty and property; acts that are obviously bad are malum per se; acts a government decides it dislikes are malum prohibitum, bad because we say it is bad. He places the war on drugs in the second category and says drug use was never considered a bad act in any society in the history of man on earth until the early 20th century in the United States, which he says has an ugly racial history rather than a medical one. He also raises the federalism question, noting that the temperance movement sought to criminalize manufacture and sale rather than consumption, and that because the federal government was acknowledged to lack the power, it took a constitutional amendment, the 18th Amendment, to give Congress the power over alcohol — asking why a constitutional amendment would not likewise be needed to criminalize drug use. He says Washington has used taxing statutes and the Commerce Clause instead. Lucy Steigerwald on The Drug War and Private Prisons (2015)
Mandatory minimums as prosecutorial leverage
The 2022 episode with Carissa Hessick treats mandatory minimums from a different angle: not what they do to prison populations, but what they do to the trial. Hessick says the system reached the point where 97 or 98% of convictions are not obtained with trials, and that this was a slow process — so getting out of it would be slow too, requiring changes by judges, legislatures and prosecutors. Her recommendation is addressed to ordinary Americans: when somebody running for office says we need this mandatory minimum to get these dangerous people off the street, the public should understand that what is really being said is that we need this mandatory minimum to give prosecutors more leverage for plea bargaining. She describes the public as having been made complicit in an over-bloated system through half-truths and sometimes flat-out lies. What happened to the right to a trial by jury? (2022)
Bob’s closing framing in that episode is that the real harm is that the practice cheapens a right, takes the people out of the process, and — as Hessick’s book explains — takes the judge out of the process, giving the prosecutor the role of both prosecutor and judge. Hessick completes the thought with one word: jury. Bob then states the conditional: the system works if your hypothetical is that every accused absolutely did it, but if you start with innocent until proven guilty, the plea bargain fails. What happened to the right to a trial by jury? (2022)
Across episodes
The topic appears in three episodes, and the treatment shifts in emphasis rather than in conclusion. In 2015, Steigerwald places mandatory minimums inside a drug-war and prison-growth argument, with numbers for the incarcerated population and a list of mechanisms including civil asset forfeiture. In 2017, Austin Petersen, campaigning for a Senate seat, places them inside an argument about an overly punitive criminal justice system perceived as biased against people of color and minorities, especially in Missouri, and about the tension between citizens and police in cities like Kansas City and St. Louis; he says the legislatures have enforced things like mandatory minimum jail sentences even for non-violent crimes, and he advocates a total end to the federal war on drugs, treating drugs as a medical problem rather than a criminal one. Federalism and the Flat Tax: The Austin Petersen Plan (2017) In 2022, Hessick relocates the same policy into the machinery of plea bargaining and the disappearance of the jury trial, and Bob’s closing in that episode is about the cheapening of a right and the removal of the people and the judge from the process. What changes across the three is the frame — prison growth, urban legitimacy, then prosecutorial leverage — not the underlying opposition.
What the sources do not cover
The excerpts do not state the text of any mandatory minimum statute, the name of any bill, or the holding of any case, and no amendment is identified as the basis for a decision. They do not give a definition of mandatory minimums as a legal category, nor do they say which offenses carry them beyond the references to drug and non-violent gun crimes. No episode states how many people are currently serving mandatory minimum sentences, and the 2015 figures given are for the incarcerated population generally, not for mandatory minimums. The 2015 excerpt also breaks off at a section heading on private prisons and public sector unions with no text following it.