Mass Incarceration and Its Mystification: A Review of The 13th

13th-netflix-ava-duvernayWhen prisoners in Alabama last spring proposed a national strike to protest “prison slavery,” they called out the infamous clause in the Thirteenth Amendment. The amendment most known for abolishing slavery included a rider that sanctioned slavery “as punishment for a crime wherein the party shall have been duly convicted.”

That exception provides the foundation for Ava DuVernay’s The 13th, an exploration of racial criminalization from the end of slavery to the present. The documentary features interviews with several leading scholars, pundits, and activists working on the issue, as well as a host of other commentators, including journalists and politicians. It moves quickly through more than 150 years of history, with a clear goal of providing the backdrop to the present moment of racial violence and resistance.

“Kalief Browder, 1993–2015,” by Jennifer Gonnerman (Photo by Zach Gross)
“Kalief Browder, 1993–2015,” by Jennifer Gonnerman (Photo by Zach Gross)

The film is at its best when it chronicles individual fates of those who encounter the carceral state. For example, the tragedy of Khalief Browder, the 22-year-old New Yorker who committed suicide after being held for three years in Rikers Island awaiting trial on charges—ultimately dropped—of having stolen a backpack, is portrayed with wrenching grace. Browder’s courage is evident in his refusal to accept a plea bargain for something he did not do. Yet the violence he faced during his imprisonment, some of it captured on film, led him to take his own life after his release. The film also presents a thoughtful, searing discussion among Black scholars and activists about the ethics of visualizing Black suffering, from lynching to contemporary killings by police.

The 13th effectively demonstrates that criminalization has been a persistent feature of anti-Black racism. It shows the recursive nature of “law and order” politics, as DuVernay juxtaposes scenes from Trump’s speeches and rallies with police and vigilante attacks on Black activists in the 1960s. Such scenes, with the accompanying commentary, vindicate the mission, purpose, and structure of Black Lives Matter as the latest manifestation of a long struggle against criminalization. The footage underscores Malkia Cyril’s powerful comment that Black Lives Matter is “about changing the way this country understands human dignity.”

The 13th describes mass incarceration as a backlash to the civil rights and Black Power movements, with some compelling footage of Black Panther Assata Shakur and other activists. Yet the film focuses more on what FBI Director J. Edgar Hoover and President Nixon thought than on what they—or others—did. The reference by CNN contributor Van Jones to the imprisonment, exile, or death of Black activists in the 1960s appears only in the context of why there was not more opposition to the 1994 Crime Bill rather than as part of examining the foundations of mass incarceration in the political repression of 1960s-era social movements. The film does not discuss the policies that gave greater power to police, prosecutors, and prisons in those critical years.

Mass incarceration is the recent expression of a larger edifice of carceral power. It is a political project that began in response to the rebellious social movements in U.S. cities and prisons during the 1960s. It began with state and national politicians giving greater resources and authority to police and prosecutors and expanding the criminal code before embarking on the world’s biggest prison construction program. It now maintains an interlinked system of policing, surveillance, and imprisonment concentrated on the most marginalized sectors of society.

Mass incarceration began through twinned campaigns of targeted antiradicalism alongside the broad political economic destabilization of working class communities of color in the 1960s. It was not simply the “evolution of racial caste,” as Michelle Alexander states. Rather, mass incarceration has always been a bipartisan political project of social control—a counterrevolution by liberals and conservatives alike. It is too narrow to, as the film does, date mass incarceration to Ronald Reagan’s expansion of the war on drugs in the 1980s and Bill Clinton’s 1994 crime bill.  That puts the onus on federal prison policy, when 90 percent of the 2.3 million people incarcerated in this country are in state prisons and local jails. Prisons, as Ruth Wilson Gilmore documents in Golden Gulag, were the state-by-state geographic solution to the American government in crisis.

9780520242012In discussing the time between Bill Clinton’s presidency and the present, the film makes several significant factual errors: it states that arrests spiked after the 1994 Crime Bill when arrests have actually fallen since that time (the bill’s more pernicious effects concerned sentencing policy, not arrest rates); it shows a graph claiming that the prison population has expanded dramatically since 2010, when incarceration rates have plateaued or even fallen since that time; and it says that Black men account for 40% of the prison population, which has not been the case for several years. Although Black people remain dramatically overrepresented in prisons, the last several years have seen the number of Black men in prison drop and the number of white and Latino men—as well as women—rise.

The prison system is racist and violent, but in ways that constantly evolve. Presenting old statistics or inventing new ones overlooks the deadly dynamism of mass incarceration. It can also reinscribe some of the same connections between Blackness and criminality that the film seeks to interrupt, such as the mistaken idea–taken from Bureau of Justice Statistics projections and debunked by professor Ivory Toldson–that there are more Black men in prison than in college or that one in three Black men will serve time in prison.

The film also suggests that mass incarceration is a profit-driven system controlled by the American Legislative Executive Council (ALEC), the shadowy lobbying group of major corporations and mostly Republican officials.  The 13th implies that mass incarceration is driven by private prisons and prison labor, and that ALEC oversees this nefarious scheme. These claims are simply false. As loathsome as ALEC is, it is a minor player in a complex network of public and private interests shaping crime policy. And as the Prison Policy Initiative has documented, private prisons account for less than ten percent of the overall prison population in the United States and are now at the frontlines of pursuing privatized alternatives to incarceration rather than mass incarceration itself. (The one exception is in the realm of immigrant detention, where more than seventy percent of detainees are held in privately run facilities.)

Beyond inflating the role of ALEC and companies like the Corrections Corporation of America, this focus on private prisons obscures the real ways money moves through or is extracted from the prison system, including both the vast expenditure of public funds dedicated to caging human beings as well as the nefarious ways private companies seek to profit off of incarceration. The film does cover the exorbitant rates charged for phone calls incarcerated people make to their loved ones, but only after the long and misleading emphasis on private prisons. Private companies, especially private prison companies, are not the driving forces of mass incarceration. They are the venal byproducts of racial state violence in a capitalist society. And as these entities now seek to steer the ship of prison reform, blaming ALEC for mass incarceration overlooks the true centers of gravity in the terrifying evolution of carceral control. It leaves students or others fired up by the film’s moral power with few places to turn to express their outrage.

Such missteps muddle the issue of where mass incarceration comes from or what it means to end it. One would be hard-pressed to find more astute analysts of racial criminalization and mass incarceration than Malkia Cyril, Angela Davis, Marie Gottschalk, James Kilgore, Khalil Muhammad, and some of the other commentators who appear in the film. Yet they appear alongside several people who have promoted and upheld anti-Black, free-market “solutions”—first to crime and now to mass incarceration. The film makes no narrative intervention to differentiate between its many interviewees, suggesting they are all equally reliable and trustworthy experts. While the cacophony of voices in the film—38 interviewees in 100 minutes—may be meant to suggest the breadth of voices opposed to the American carceral state, in practice it normalizes some dangerous or misleading analyses.

Some of the most robust avenues for understanding mass incarceration are unexplored in the film. The loudest silence is the inattention to women’s incarceration as well as the incarceration of lesbian, gay, bisexual, transgender, and queer people. As many do, The 13th treats mass incarceration as only a story of Black men in prison. Yet while women have always been a small percentage of the overall number of prisoners, between 1980 and 2014 the growth of incarceration increase—initially for Black women, and now for white women—has been higher than men. The film also overlooks the other labor women and queer and trans people do as a result of mass incarceration in maintaining families and communities. Other distinctive, and distinctly racist, areas of American prisons—such as the death penalty and long-term solitary confinement—are barely mentioned or overlooked entirely.

DuVernay is exactly right to insist that criminalization has been and remains yoked to racism. And she has assembled some of the sharpest minds—if also, sadly, some of the dullest—to excavate why that is the case. The end result, however, is underwhelming. Overall, the film is too inattentive to the historical ebb and flow of racial criminalization, and it misses some of the most damning components of punishment. As Brett Story, director of another recent documentary on mass incarceration, The Prison in 12 Landscapes, told me, “dehumanization is the consequence, not the cause, of mass incarceration. It is not an attitude but a relation systematically organized and corroborative of other structures of abandonment.” Attending to those structures of abandonment is critical to understand and eradicate mass incarceration.

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Dan Berger

Dan Berger is an associate professor of comparative ethnic studies at the University of Washington Bothell. He is the author of several books including Captive Nation: Black Prison Organizing in the Civil Rights Era, which won the 2015 James A. Rawley Prize from the Organization of American Historians. His latest book, coauthored with Toussaint Losier, is Rethinking the American Prison Movement. Follow him on Twitter @dnbrgr.

Comments on “Mass Incarceration and Its Mystification: A Review of The 13th

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    Thank you Dan for taking the time to write this excellent review. It is very helpful to those of us, like myself, who also found the film unsatisfying, requiring the kind of corrections you’ve offered. Especially for people new to the issue or students, this is frustrating. The only point I would add to all of yours is the absence of any attention at all to the prison abolition movement, which has without doubt created the conditions for both Michelle Alexander’s and Ava Du Vernay’s interest in the issue. I’d need to double check but am I correct that despite the emphasis on prison as slavery, there was no mention of the strikes? Certainly Georgia and first round at Pelican Bay occurred in the window of the film’s production. As you suggest, without an attention to any of the political work that has been done over the years, the film doesn’t have a way to offer political solutions which, as Brett Story, would yield something other than dehumanisation. Again, thanks for doing this!

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      Thanks, Avery, and you are right on all counts! I wish there had been some mention of organizing and strikes, especially given all the strong organizers who appear (if briefly) in the film. I agree, the silence around abolition was surprising when slavery was the central trope of the film. All the more reason Gingrich, Norquist and ALEC had no place in the film!

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    “We are a nation of laws and not of men” – NO! We are a nation of laws made by powerful men.

    Instead of crimes ‘against society’ we need to begin framing issues around the crimes that society perpetrates against the poor, the black, the vulnerable.

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      I agree completely, Ruth.

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    Thank you so much for this review! I really appreciated your deep analysis and how plainly you wrote your objections. I have not seen The 13th yet but this was so helpful regardless.

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      Thanks so much, Alyssa! Glad you found it helpful.

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    Thanks Dan for this great review. I came away from this movie noting that the subject of prison slavery was effectively overlooked. The film’s title “The 13th” had me hopeful. Sadly, it comes off to the informed as more disinformation, and to all the masses who conveniently continue to claim ignorance of all things mass incarceration related, I think it is yet another safe place to say you dipped your toe into the problem. You can say you watched this movie, and all the rest of your otherwise unconcerned friends can agree that it is an excellent film. People will sip warm cider over the coming holidays and say, “yeah, we’ve got a real problem”. It is my belief that the film had no solutions, because it was a smoke and mirrors propaganda piece. I don’t believe that it was intended in any way to actually wake people up to the reality of the situation- that America did not abolish slavery. I do not believe that Ava had permission to teach people how the 13th made slavery a function of the state. An institution of the state. This movie is the “New Jim Crow” on film. Just like that book did much to popularize the mass incarceration issue, and introduce the same old info to a new generation of scholars and tv talking heads- neither that book, nor this movie says much about the undeniable connection between the 13th Amendment exception, and real physical slavery and slave wages being paid to forced laborers. I do not believe it to be coincidence that the entirety of so inclined intellectualism in America suffers from collective blindness to these facts. At this point, it comes across as either willful ignorance, or these people and social justice groups are being co-opted to keep the real issue and incentive out of the mainstream conversation. People need to be confronted with the simple question of whether or not the 13th totally abolished slavery..Yes or No. The film took great efforts to avoid this, as easily as it would seem for it to have been proposed. Presumably, once a person has admitted that the 13th did not actually abolish slavery, the film had the logical follow up question- do you support slavery?
    If the viewer is still on board with reality and humanity, they should answer No. With that cleared up, there should be no problem getting the public behind a movement to abolish 21st century slavery and human trafficking. Remove the exception from the 13th should have been this film’s closing battle cry. Common could have just as easily penned lyrics specific to the “stupendous lie”, as Frederick Douglass referred to it, and Ava could have ended her movie with a far more impactful anthem soaring over the scrolling credits- complete with a call to action.
    Instead, finding slavery in this polished propaganda piece is like finding Waldo. You would have to have one hell of a good eye to see it.

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      Yes, let’s remove it and then these most vile sub-humans who Murder, Rape, and Steal from The Innocent can have NOTHING. It will still be light years ahead of what prisoners in Brazil, Venezuela, Ect, Ect go through. Have you ever seen a man being fed his own fingers ?

      I have

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    You said a lot about the 13th except one thing. Whether the director or the prisoners were right.
    Slavery is alive and well in America. To me this sounds like a hatchet job to discredit that very truth.

    Every day prison stocks are sold on the open market. Prisons have contracts with states that guarantee 80-100% occupancy. Each year 24 million go through our justice system. All of them generating money. You should have focused on the FACT that the 6th amendment is overwhelmingly violated every day by plea bargain rate nearing 100%. Turning courts into human processing plants. No. Private prisons are just the cancer that poisoned our entire system. Or the fuel that pushed it to be all it was meant to be when the 13th amendment exception clause 1st appeared in vermont’s constitution of 1777, Ohio and Alabama in the 1840’s and finally in Lincolns betraying hands in the 1860’s.

    Here is a question for you. Did legalized slavery end? At all? Ever?

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      AND I think its screwed up for you to use Kalief Browder’s image in this. How are you honoring him or helping to prevent what happened to him from happening to someone else? When this post is shared it’s with his image as the link.

      If this is a review take it down and leave the films logo instead.

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    Thank you Dan for this review. Beyond the corrections you make to the film, I think a more fundamental problem lies with how the film and your critique, together, share a disposition to mis-locate black struggle in the mass incarceration question. I elaborate on the points below in a forthcoming guest blog for the Abolition Collective, as well as in my forthcoming book Blackhood Against the Police Power: Punishment and Disavowal in the “Post-Racial” Era. Here’s some of the problems with both your review and the film itself:
    * Criminalization of blackness does not begin with the 13th Amendment; rather, it is the work of slavery itself, as consultation of court cases from the slavocracy confirms.
    * The 13th Amendment does not bear a “loophole” that opportunists and racists alike have been able to exploit across the eras. The clause in question is more accurately termed a design feature, not a design flaw.
    * What we’re dealing with, then, is not the winnowing of slavery’s scope to the purview of criminal justice, but rather the socialization of slavery–no plantations, no auction blocks, no prisons, no laws necessary.
    * Mass incarceration, therefore, is but one discrete moment of the institutionalization of antiblack sexual violence. It is beside the point how many black people are in prison today versus in 1860, versus in college today, or compared with any other racial group. The incarceration of non-black people makes slavery a mere event (albeit a hugely consequential one) in non-black lives, whereas slavery remains a condition of existence for black people, whether they are incarcerated or not. For this reason, deleting the clause in the 13th Amendment will not, once and for all, end racial slavery.
    * Contrary to the conclusion of your review, the police and prisons are an expression of a will to punish black people that is constitutive to our world, premised on a dehumanization that is prior to any contemporary notions of “police” or “prison.” The film and your review inverts this reality of power.
    Finally, DuVernay’s opportunistic use of recent images of black people killed by police is too problematic to adequately address here, but suffice it to say that it is more in line with how black people have been used for almost a millenia, than it does intervene in the ongoing reality of fungible blackness.

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