Mandatory minimums are discussed on The Bob Zadek Show as one component of what guests describe as an overly punitive criminal justice system, chiefly in connection with the war on drugs. The excerpts do not supply statutory text, a definition of the term, or any case construing it. Instead, mandatory minimums appear as a mechanism that, in the account given by Lucy Steigerwald, kept people in prison longer for drug and non-violent gun crimes, and that, in the account given by Austin Petersen, is among the policies state legislatures have enforced even for non-violent crimes. Both treatments place the policy inside a larger argument about incarceration, federal authority and the drug war rather than treating it as a subject in its own right.
Lucy Steigerwald: mandatory minimums and prison growth
Steigerwald introduces mandatory minimums in the course of explaining why the prison population grew. She dates the explosion of that population to three decades before the conversation, when, in her account, Ronald Reagan decided to militarize the war on drugs, and she contrasts 2.3 million people in prison and jails with something like 300,000 prison-wise three decades earlier. Within that same passage she lists mandatory minimums alongside civil asset forfeiture as forces that shaped the system: civil asset forfeiture, she says, directly prioritizes police to go after drug crimes rather than legitimate crimes because they can benefit through seized cash or materials, cars, and other property they can sell for revenue, and mandatory minimums kept people in prisons for longer for drug and non-violent gun crimes. She concludes that the entire system is now set up to prioritize non-crimes, and calls it a disaster Lucy Steigerwald on The Drug War and Private Prisons (2015).
Bob Zadek’s framing in that episode is that the criminal justice system has been captured by the war on drugs and diverted from protecting people from bad guys to a political activity carried on at great expense and at the cost of safety. He asks Steigerwald whether there has not been a capture of the criminal justice system and the prison system by what he calls the non-threat of drugs. Steigerwald agrees, while noting that drugs are not the only serious issue in the criminal justice system, and she points to murder trials and other facets as things to worry about. Her mention of mandatory minimums thus sits inside a broader claim about systemic capture rather than standing as a separate argument Lucy Steigerwald on The Drug War and Private Prisons (2015).
Later in the same episode, Zadek returns to sentencing. He says that with the sentencing guidelines and the sentencing regime, liberty is taken away at the drop of a hat and people are locked in a cage, their humanity taken away for a reason he calls indefensible. Steigerwald responds 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. She offers the example of the casual reaction that someone only got five years or three years for growing a marijuana field, and argues that people have lost the ability to tell that sending somebody to prison is a really big deal. She says 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 about the state being offended. She invokes the voluntarist formulation no victim, no crime Lucy Steigerwald on The Drug War and Private Prisons (2015).
Zadek endorses that principle as a core doctrine of libertarian thought and elaborates a distinction between malum per se and malum prohibitum, placing the war on drugs in the latter category. He argues that drug use was never considered a bad act in any society in the history of man on earth, that it became bad only in the early twentieth century in the United States, and that this development had an ugly racial history rather than a medical one. He also argues that the federal government has no constitutional basis to criminalize drug use, and asks why, if a constitutional amendment was needed to give Congress power over the manufacture and sale of alcohol, no amendment is needed to criminalize drug use. He notes that Washington has used taxing statutes and the Commerce Clause as the hook Lucy Steigerwald on The Drug War and Private Prisons (2015).
Austin Petersen: mandatory minimums and non-violent crimes
Two years later, Austin Petersen raises mandatory minimums in answering a caller’s question about whether the Michael Brown incident would be a factor in his Senate race. Petersen says there has been tension in the inner cities between citizens and police, and attributes a lot of it to an overly punitive criminal justice system perceived to be biased against people of color and minorities, especially in Missouri. He says he agrees, and that the criminal justice system needs major reforms, with the biggest problem being the federal war on drugs, which he calls a prohibitionist bloody war on our own people, expensive and an absolute waste of life and time Federalism and the Flat Tax: The Austin Petersen Plan (2017).
Petersen’s position is that drugs should be treated as a medical problem rather than a criminal problem. He says it is horrible when people get addicted to drugs, but that throwing people in jail for doing self-harm helps no one, and he observes that drugs cannot be kept out of prisons, so the prospect of keeping them out of the United States is worse. He advocates a total end to the federal war on drugs. He then turns to the local level, saying the fish rots from the head down and that states also have very punitive policies. The tension in the inner cities, he says, comes from people perceiving, and he believes rightfully so, that they are the victims of a harsh criminal justice system in which legislatures have enforced things like mandatory minimum jail sentences even for non-violent crimes. He illustrates the point with the contrast that a person can be gunned down in the street for being a threat because he sold a pound of marijuana, while in Colorado or Washington the same person could become a millionaire, and asks why the policies are inconsistent Federalism and the Flat Tax: The Austin Petersen Plan (2017).
Petersen adds that many of these chemicals are very dangerous, but that their danger is not properly known because they are illegal and cannot be properly tested, and that doctors cannot do the testing that would be necessary. He mentions reading a study suggesting that MDMA, commonly known as ecstasy, may help people suffering from PTSD, and says more testing like that is needed. On the Michael Brown matter itself, he says whether Brown was innocent or guilty is irrelevant to him, because the aftermath and backlash were the straw that broke the camel’s back: tension brewed and bubbled and then passive-aggressiveness became full-blown aggressiveness because people feel they are not getting a fair shake from their government. He says he tends to agree with them, and that criminal justice reform is why he is campaigning on the issue Federalism and the Flat Tax: The Austin Petersen Plan (2017).
Bob Zadek’s contribution in that segment is to tell Petersen that he would help Senator Paul and Senator Booker in that regard, and, at the close of the episode, to say that Petersen has commented on drug policy and will help Senator Paul and Cory Booker and others where help is surely needed on rationalizing what Zadek calls the insane criminal justice system Federalism and the Flat Tax: The Austin Petersen Plan (2017).
Across episodes
The topic is touched on in the Lucy Steigerwald episode of 2015 and the Austin Petersen episode of 2017. In the earlier treatment, mandatory minimums are named by Steigerwald as one of the mechanisms, alongside civil asset forfeiture, that lengthened prison stays for drug and non-violent gun crimes and that helped produce a prison and jail population of 2.3 million; in the later treatment, Petersen names mandatory minimum jail sentences as an example of the punitive policies state legislatures have enforced even for non-violent crimes, and places them within an argument about minority trust in government and the aftermath of the Michael Brown incident. The excerpts show no development or exchange between the two treatments: the two guests raise the policy in different contexts, and neither responds to the other.
What the sources do not cover
The excerpts do not state which statutes impose mandatory minimums, what conduct triggers them, what sentence lengths they require, or which legislative bodies enacted them. They do not name any judicial decision construing a mandatory minimum, nor identify which constitutional provision such a challenge would turn on. They contain no proposal directed specifically at mandatory minimums, as distinct from the broader calls to end the federal war on drugs or to reform the criminal justice system. They also do not report any figure for the number of people held under mandatory minimum sentences.