The visionary filmmaker Ava DuVernay, director of 2014’s Selma, makes it clear in her long-awaited documentary, 13th, that the U.S. prison system is the nation’s greatest shame since slavery. More than that, she posits that it is actually a continuation of slavery. The systemic denial of freedom to African Americans is tied up in both institutions, and DuVernay new work makes those connections undeniable. In fact, her film argues convincingly that the country’s current incarceration state might be worse than slavery. Consider, as 13th informs us, that there are more African Americans ensnared in the criminal justice system today than the number enslaved in 1850.
Slavery would have been abolished in 1865 by the 13th Amendment (hence the film’s title), but for one small clause that all but grandfathered slavery back in for the sake of crime and punishment. That clause reads that slavery shall no longer exist in the U.S. “except as a punishment for crime whereof the party shall have been duly convicted.“ America has been unshy about exploiting that clause to great profit ever since, and 13th duly chides the nation for it.
“I believe the system is broken and can’t be fixed through one-off solutions,” DuVernay tells CityLab. “It needs to be dismantled and we need to begin again, truly. There are improvements that can be made, but that’s what we’ve been doing for generations now—little tweaks here and there that really don’t make for overall large-scale improvement.”
13th’s narrative spans decades, beginning with Reconstruction, when the 13th, 14th, and 15th Amendments were supposed to foster African Americans’ just transition from enslavement to citizenship. Instead, they were hunted and locked up for petty crimes like loitering and “vagrancy”—both criminalizations of the behaviors of migratory black people looking for freedom from terror in America’s wilderness.
That period was followed by the Jim Crow era, where any African Americans caught trying to enjoy freedom by crossing the lines of segregation were swept into the expanding industries of imprisonment and convict leasing. By the 1950s and 1960s, African-American civil rights activists were made criminals simply for fighting for freedom. And by the 1980s, the U.S. began criminalizing en masse black people who turned to drugs, namely crack, many of them besieged by the realization that the search and fight for true freedom was futile.
The civil-rights law scholar and theologian Michelle Alexander brought many of these truths to the fore in her much-heralded book The New Jim Crow. She is featured prominently in 13th, discussing how mass incarceration has and hasn’t changed since her book was first published six years ago. Notably, what’s changed, she says, is the way that we talk about those who’ve been imprisoned.
“In my book, I use the term ‘ex-offender,’ and in just in the short time since the book has been released, that terminology is no longer used—and I would never use it again,” Alexander tells CityLab. “People who are formerly incarcerated talk about the importance of not referring to people as ‘felons’ or ‘ex-offenders,’ so that they’re not forever defined by something they once did in their lives. The language of ‘returning citizens’ and ‘formerly incarcerated people’ has not only entered the discourse, but has helped to shape my own understanding about what’s really at stake here.”
Many of those voices of the formerly incarcerated are included in 13th, and DuVernay is smart to enlist a broad spectrum of commentators to jury this issue. Among them are hard-nosed conservatives including Grover Norquist and Newt Gingrich. In the 1990s, Gingrich was a primary author of the GOP’s “Contract with America,” which included the Taking Back Our Streets Act—a package of tougher-than-tough-on-crime laws that committed Congress to expanding the prison industrial complex. Gingrich was also one corner of President Bill Clinton’s triangulation around crime policy. Together, Clinton and Gingrich produced laws that accelerated the already-explosive growth in mass black incarceration—a fact that haunts Hillary Clinton’s current presidential campaign.
Today, both Clinton and Gingrich have backed away from their crime-law legacies, with Gingrich appearing rather contrite about his contribution to mass incarceration in 13th. “The objective reality is that no one who is white understands what it’s like to be black in America,” says Gingrich in the documentary.
DuVernay’s film makes sure viewers understand that America’s incriminating eyes haven’t just been fixed on poor African Americans who got hooked on drugs. She also shows the heavy surveillance placed upon African-American leaders who’ve dared to bring black people closer to freedom. This includes the FBI spying on Martin Luther King, as well as Chicago police gunning down the young Black Panther leader Fred Hampton in the wee hours of night. Whether it was Freedom Summer or the Black Power movement, 13th shows how America used jail as a way to try to quell such campaigns. (Stanley Nelson Jr.’s 2015 documentary The Black Panthers: Vanguard of a Revolution suggests that incarceration was one of the most consequential actions to doom that movement.)
The political commentator Van Jones, who’s partnering with Gingrich on criminal-justice reform, explains in one segment how the history of white leadership in the U.S. could be told without mentioning the FBI once, but that the same can’t be said for any black leaders. A filmmaker could create an entire documentary on that one point alone.
There are many terminal consequences of the U.S. incarceration system that are not covered extensively in 13th: prison gerrymandering, the rampant sexual abuse and rape that occurs in prisons, the travesty of solitary confinement. DuVernay tells CityLab that there’s a four-hour version of 13th that delves into other subjects. But for the 100-minute version that will debut Friday on Netflix and in select theaters, DuVernay says she aimed to stick to a strict thesis: How slavery has been extended and broadened over time thanks to that 13th Amendment loophole.
That loophole placed a black teenager in New York City named Kalief Browder in Rikers Island for nearly three years for a crime that he did not commit. He was unable to post bail after he was arrested in 2010, and he was unwilling to take a plea deal. 13th explains how the criminal justice system essentially punished Browder for not pleading out by trapping him in jail anyway. Bryan Stevenson, the crusading civil-rights lawyer who heads the Equal Justice Initiative, says in 13th that, if every defendant took their cases to trial, the entire criminal justice system would implode. This sounds like a worthwhile gamble under the weight of evidence presented in 13th.
When Browder finally was released from jail because prosecutors could not produce any evidence of wrongdoing, he had lost many of the mental and emotional faculties a person needs to enjoy freedom. At Rikers, Browder took one too many beatdowns from inmates and prison guards alike, and was remanded to more time in solitary confinement than his soul could bear. Unable to find freedom after his release, Browder committed suicide.
This is easily the most heartbreaking segment of 13th, even for those who might already be familiar with his story. Even more heartbreaking is knowing that there are likely thousands of Browders still trapped in Rikers.
“There are new services, approaches, behavioral therapies, and practices out there that would be a lot more humane and dignified, and would deliver much more positive outcomes than the way that we incarcerate people now,” DuVernay tells CityLab. “There needs to be a complete overhaul [of the prison system] where at least some small amount of dignity and humanity is included in the plans. We have absolutely none of that in the current process.”