Ava DuVernay’s documentary The 13th, available for free on Netflix, aims high, trying to tell the history of mass incarceration in the United States while tying it inextricably to the history of the oppression of African-Americans post-slavery. DuVernay assembles a formidable group of pundits, activists, and politicians – not all black, and not all from the left – to examine the arc of American prison culture over 150 years through an narrator-less stream of commentary. It is almost guaranteed to disturb anyone who sees our racial divide for what it is, in social and economic terms. It is also an infinite loop of anecdotal fallacies, so light on hard evidence to support any of its many assertions that it is unlikely to convince the unconvinced of anything at all.
The 13th traces the history of the subjugation of the African-American in the United States from the passage of the 13th Amendment (hence the title) through the present day’s Black Lives Matter movements and the overt dog-whistling of President Trump while on the campaign trail. The 13th Amendment outlawed slavery but left a glaring exception within its text:
Neither slavery nor involuntary servitude, 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.
Did you know that “except” clause was there? I couldn’t have told you that if you’d asked me three days ago what the 13th Amendment said or did; I thought it ended slavery, full stop. What ensued set the stage for the modern era of mass incarceration, according to the various historians and pundits we see in The 13th: The southern economic engine ran on free black labor before the Civil War, so after it, blacks were arrested on trivial spurious charges, imprisoned, and then put to work to keep the engine running. White authorities used jail as a way to quell civil rights movements as well as a source of free or cheap workers, imprisoning nearly all of the major civil rights leaders at some point during the 1950s and 1960s, a practice the film implies ended with the acquittal of activist Angela Davis – a scene I’ll return to in a moment – only to have the system roll back over again on itself with a new tactic. “Tough on crime” politics gave authorities new reasons to lock up African-Americans, especially men, for longer periods of time even on lesser charges. Sentences for possession or distribution of crack were longer than those for equivalent quantities of powdered cocaine. Multiple levels of government enacted mandatory minimums and three-strikes sentencing rules. Many people were locked up simply for their inability to pay fines or post bail, something John Oliver covered well two years ago on Last Week Tonight. Prisons were privatized, and firms like CCA are now paid based on prison populations, so they have every incentive to keep jails full. The film asserts that all of these factors contribute to the ongoing high rates of incarceration for African-Americans relative to white Americans. You’re about six times more likely to spend time in jail in your life if you’re a black man than a white man.
It’s easy to sit here in 2017 and handwave away much of the black-and-white footage in the film as relics of our racist past, but much of what the film covers from Reagan forward should really get your attention. The War on Drugs could easily take up this entire film for its effects on people of color, our system of mass incarceration, and the colossal waste of public funds for little to no public benefit. Decriminalizing possession works in many ways, including reducing usage. Portugal decriminalized drugs in 2000, adopted a recovery-centric approach to helping addicts, and has seen drug use fall while HIV infection rates stayed stable. The Netherlands decriminalized in 1976 and they have so many empty prison cells they’re using them to help house migrants. I thought The 13th could have gone even farther down this road, talking not just about what imprisoning African-Americans on minor drug offenses does to the community (and how it provides free prison labor and supports an entire industry of firms that contract with prisons to provide goods and services, including Aramark), but looking at violence related strictly to the War on Drugs and the effect that has on people of color.
As for Angela Davis, who appears many times on screen to discuss the issue at hand, the movie totally whiffs on her own backstory. The film never explains why she was on trial in the first place, implying that it was a politically-motivated charge to silence her, praising her for dominating the proceedings with her defense, and claiming that the state wanted to give her the death penalty. Davis was actually charged with murder, kidnapping, and criminal conspiracy related to the Marin County courthouse incident, where an armed 17-year-old tried to free his brother and two other men, who were charged with killing a prison guard – it’s a complicated story, so I encourage you to read those links. The assailant used guns purchased by Davis two days prior to the attack. The charges may indeed have been trumped up for political reasons. She was placed on the FBI’s Most Wanted List while she was on the run, which also seems like it was a political move. And I don’t see how she could even have been charged with anything but conspiracy if she wasn’t even present at the crime. But the film mentions none of this, and it’s pretty damn relevant to that entire sequence. The prosecution of Davis may have had a political motivation, but she wasn’t arrested without cause, either.
That’s a single example of a maddening problem with The 13th: It’s 90% opinion and 10% fact. Do I believe there’s a pyramid of firms profiting off our system of throwing people in jail for nonviolent offenses? Absolutely. But give us some data on that – how many people are locked up for these crimes? How many days or years are lost? Who’s paying for that imprisonment, and how much? In jurisdictions with lighter sentencing, do we see positive effects? Mandatory minimums vary by state; how have states that rolled back these laws fared? How about third-strike laws, which only exist in 28 states? These are subjects of real academic research, but instead of giving us data, or scholars discussing their work, we get circular reasoning, solipsistic assertions, and appeals to emotion. In fact, I thought the most fascinating commentary came from one of the film’s few non-African Americans to speak: Newt Gingrich, who offered thoughtful, intelligent remarks on the failures of the 1980s and 1990s efforts to get “tough on crime” and of the imbalanced sentencing laws on crack and cocaine.
The 13th has been nominated for the Oscar for Best Documentary feature along with Life, Animated; Fire at Sea; I Am Not Your Negro; and ESPN’s own O.J.: Made in America. While it has sort of the political angle the Academy tends to favor in voting, it’s so full of rhetoric without evidence that I couldn’t possibly consider it over O.J., even before considering the latter’s length and vast scope. This is more of a call to action to the faithful than the film to send your “All Lives Matter!” friend to get him to realize he’s being ridiculous. (Better to unfriend him anyway.) It’s a demand for change, but to convince enough people to push the change through in the face of enemies with enormous economic incentives to support the status quo, we’ll need a lot more than The 13th provides us.