Filmmaker Ava DuVernay’s new documentary, available to stream this Friday via Netflix, is called 13th, as in the 13th amendment, the one that formally abolished slavery in the United States, and, at least in theory, granted freedom to all Americans.
But for a crucial caveat: “Neither slavery nor involuntary servitude,” it reads, “except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
That bit in italics is what concerns DuVernay, a clause that has long offered a massive loophole to those who seek to exploit it. It’s no secret that the United States is a world leader when it comes to putting its people behind bars. As President Obama reminds us in an audio clip at the documentary’s start, this country is home to five percent of the world’s population and 25 percent of the world’s prisoners. Around 2.3 million Americans are currently incarcerated. Of that number, 40.2 percent are African-American men. That fact is more shocking when you consider that African-American men make up only about 6.5 percent of the U.S. population. Or, to put a finer point on it, per New Jersey Senator Cory Booker: “Right now, we now have more African-Americans under criminal supervision than all the slaves back in 1850s.”
DuVernay’s film looks at how we got from there to here, tracing a line from the abolition of slavery to the present day, from The Birth of a Nation (the 1915 D.W. Griffith original, that is) to Trayvon Martin, and convincingly makes the case that mass incarceration has replaced institutionalized slavery as a nationally supported way of subjugating and disenfranchising African-Americans.
Criminalizing blackness in America has long been a means of political oppression—most felons, after all, can’t vote while in prison or on parole, and some never reclaim the right. But if you look for them, DuVernay suggests you’ll find plenty of financial incentives as well.
In the aftermath of the Civil War, films like The Birth of a Nation—such a blockbuster that even President Woodrow Wilson requested a private screening—helped to cement the association of dark skin with criminality, reinforcing what writer Jelani Cobb refers to as the trope of the “rapacious menacing negro male evil that had to be banished.” The film was responsible for a Ku Klux Klan revival (it was Griffith who popularized the notion of burning the cross, a flourish the KKK thrilled to), and an attendant slew of lynchings, murders under the guise of vigilante justice. Reconstruction saw the country’s first prison boom, and the growing numbers of convicts were, like slaves of the generation before, a pool of free labor to help rebuild the post-abolition Southern economy. It would prove a harbinger of things to come.
That the Civil Rights era explicitly reclaimed the act of getting arrested simply underscores the notion that police harassment has always been a major part of black life in America. As Henry Louis Gates, Jr., points out, civil rights protests made “being arrested” something “noble.” Black people “voluntarily defined a movement around getting arrested, turned it on its head.”
But civil rights dovetailed with a rise in the country’s crime rate, a result of demographic changes spurred by the baby boom. DuVernay found a hauntingly prescient archival video clip of Black Panther Assata Shakur: “In the next five years,” Shakur predicted, “something like three hundred prisons are in the planning stages. This government has the intention of throwing more and more people in prison.”
Enter the ’70s, the beginning of our modern era of mass incarceration, a period when, per activist and scholar Angela Davis, crime began to stand in for race in political discourse. DuVernay quotes a Nixon official who broke down the strategy the Republican president used to appeal to racist southern whites and voters fearful of the lefty unrest of the late ’60s. A war on crime became a war on drugs. “We knew we couldn’t make it illegal to be either against the war or black. But by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing both heavily, we could disrupt their communities.”
Reagan, again per Davis, turned Nixon’s rhetorical war into a literal war on drugs, particularly on crack cocaine, which was criminalized in a way powder cocaine was not, decimating black communities: When it came to prison sentencing, one ounce of crack was equal to a hundred of powder.
Ironically, it was the Democrat Bill Clinton who arguably did the most to birth the current prison industrial complex, and the problematic policing policies now front and center in our national conversation. Clinton won the presidency as a new breed of law-and-order Democrat, after watching Michael Dukakis lose to George H. W. Bush, in part over a racially coded campaign attack ad that asserted Dukakis was dangerously soft on crime. Clinton overcorrected, in the form of a 1994 omnibus federal crime bill, a $30 billion behemoth that allowed for a huge expansion of the prison system (he has since, at least in part, denounced it). The bill incentivized states to adopt truth-in-sentencing laws, which required that prisoners serve at least 85 percent of their sentence. Clinton was also responsible for federal three-strikes laws, which doled out life sentences to repeat offenders. Along with Reagan-era mandatory minimum sentencing for drug crimes, these added up to more people, disproportionately people of color, in prison for longer periods of time.
Flash forward to the present day, when tragic stories like that of Kalief Browder—the Bronx 22-year-old who hanged himself after wallowing for three years in jail awaiting trial when he refused to take a plea bargain for a crime he didn’t commit—remind us of the cost of all these laws. (In a nutshell: Poor people are incentivized to plead guilty for lesser sentences instead of going to trial.) And what happens to all those prisoners once they’ve served their time? A robust prison system leads to huge numbers of ex-convicts, a permanent population of second-class citizens. As Bryan Stevenson, the founder of the Equal Justice Initiative, points out, when tens of thousands of people showed up in Alabama in 2015 to celebrate the 50th anniversary of the historic march from Selma to Montgomery in support of voting rights, few of them realized that “nearly 30 percent of the black male population of Alabama today has permanently lost the right to vote over a criminal conviction.” Or, as author Michelle Alexander puts it: “So many aspects of the old Jim Crow are suddenly legal again once you’ve been branded a felon. And so it seems that in America we haven’t so much ended racial caste, but simply redesigned it.”
Again, DuVernay points to the financial incentives. Take this (admittedly out of context) archival clip of ALEC cofounder Paul Weyrich speaking in 1980: “They want everybody to vote. I don’t want everybody to vote. As a matter of fact, our leverage in elections quite candidly goes up as the voting populace goes down.”
If the name ALEC is ringing a bell, you’re probably remembering coverage of the Trayvon Martin case. George Zimmerman, the neighborhood watch guard who shot and killed the 17-year-old Martin, escaped legal consequences in part because of Florida’s Stand Your Ground law, a model bill for ALEC, a political group that scripts plug-and-play legislation for its politico members (generally Republicans) to introduce on behalf of its corporate members (this has included, over the years, a laundry list of major American companies). Florida’s Stand Your Ground law passed in 2005. In the years after, similar laws passed in several other states with the help of ALEC. Gun sales boomed. Walmart was, at the time, both one of the country’s biggest gun retailers and an ALEC member. You do the math.
Hindsight is 20/20, but DuVernay also casts her gaze ahead. As activist Glenn E. Martin asserts, “when I think of systems of oppression historically and in this country, they’re durable. They tend to reinvent themselves, and they do it right under your nose.” If it seems that our current political climate has us trending toward decarceration and criminal justice reform, look deeper. The Corrections Corporation of America (CCA), the first private prison company in the U.S., left ALEC in 2010 supposedly over a controversy sparked by Arizona SB 1070, the ALEC-supported law that helped fill CCA-run detention centers by giving police the right to stop anyone they thought was an undocumented immigrant.
The American Bail Coalition, though? Still an ALEC member. Political opportunism is not the same as reform, DuVernay offers. “How much progress is it really,” wonders Michelle Alexander, “if communities of color are still under perpetual surveillance and control, but now there’s a private company making money off the GPS monitor, rather than the person being locked in a literal cage?”
If you follow the news, tune into John Oliver, and had a good American history teacher in high school, you’ll already know the major plot points in 13th. But DuVernay connects the dots, forcing us to face our history and consider how doing so reframes our understanding of the present. The picture that emerges is scary.
The film also recasts the conversation about race in this country in terms that are appropriately shocking. Lynchings were acts of terrorism. African-Americans who fled north during Jim Crow were refugees. And a system that puts black men in chains and asks them to work for free on behalf of the countless corporations that depend on prison labor and profit from mass incarceration? That’s slavery by a different name.