Reviewed by David Etheridge
Written by Ava DuVernay and Spencer Averick, directed by Ava DuVernay. Netflix Documentary, 2016. 100 minutes. Public screenings are free without a Netflix subscription. Private screenings are free with subscription.
Ava DuVernay’s Netflix documentary 13th is quite simply a tour de force. Central to this account of how the U.S. criminal justice system has been manipulated over 150 years to continue the legacy of slavery are some 39 interviews with the most knowledgeable scholars and activists around today, including Michelle Alexander, Bryan Stevenson and Henry Louis Gates Jr. Each interview lasted two hours and, as the director explained in her accompanying Netflix conversation with Oprah Winfrey, “Everyone I asked said ‘yes.’”
The documentary begins by laying out current statistics about the high incarceration rates in the United States, but turns quickly to the history of how we got here. That account begins by noting that the Thirteenth Amendment to the U.S. Constitution prohibited involuntary servitude except as punishment for a crime.
Formerly slave-holding communities quickly turned to that exception to return many black men to slave status. Men were convicted of loitering, vagrancy, or other minor offenses, and then compelled to work as prison labor often for former slave owners. This convict leasing practice began the process of creating a connection between black men and criminality in the public mind.
That connection was solidified in the early twentieth century with the film Birth of a Nation, which characterized black men as criminal predators and portrayed Ku Klux Klan terrorism as saving the nation from the threat of black violence against white women. In response, terrorism—including lynching—was used to reassert the control over the black population that was lost when slavery ended, and it is graphically documented in 13th with archival photographs. (The graphic nature of that depiction should be taken into account when deciding whether and how to show this documentary to children.)
Both interviews and archival footage illustrate how the civil rights struggle of the 1950s and 1960s led to legislation and court decisions ending legal segregation. Faced with the greater freedom for black people that resulted, politicians again resorted to equating blackness with criminality; what followed were the War on Crime and the War on Drugs. Those “wars” were a key element in the “Southern strategy” that brought Republicans to power after the successes of the Civil Rights Movement.
Statistics document the skyrocketing incarceration rates in the 1980s. Archival footage shows how fear of black crime was exploited to continue Republican rule with the 1988 “Willie Horton” political television advertisements; later, the Democrats prevailed with Bill Clinton’s own “tough on crime” campaign, which pushed incarceration rates still higher. His 1994 crime bill funded the construction of more prisons and spurred the militarization of the police with SWAT teams. Description of the mandatory minimum sentences and “three strikes, you’re out” policies are paired with testimony from those on the receiving end.
DuVernay found the part of the story most surprising to her to be the role of the American Legislative Exchange Council (ALEC) in promoting legislation responsible for many of the oppressive features of mass incarceration. Those measures include stand-your-ground laws and privatization of prisons. Michael Hough, a Maryland State senator and a current state leader of ALEC, helps tell the story of how ALEC has changed but continues to influence the criminal justice system for the benefit of ALEC constituents.
Interviewees describe other oppressive features of mass incarceration, including plea bargaining in lieu of trials; a bail bond system that, as Bryan Stevenson explains, privileges the wealthy and guilty over the poor and innocent; solitary confinement; and collateral consequences that attach whether or not someone who pleads guilty is currently in prison.
Although interviews took place over a two-year period, many recent events are included—such as the Black Lives Matter movement, and the deaths of Tamir Rice, Philando Castile, and Eric Garner.
While the substance seems overwhelmingly depressing, I came away with a strong sense of hope. I attribute that to my awareness that so many of those telling the most negative parts of the story are themselves deeply committed to the struggle to end mass incarceration. The documentary ends over the final credits with a photo montage celebrating black life accompanying rapper and poet Common’s “Letter to the Free.” That celebration of black life makes clear what is at stake in the struggle to end mass incarceration.
The criminal justice system in the United States is complex, and effective response to it is too complex for any one of us. I think, however, that the closing celebration can inspire many viewers to discern what role they are led to undertake to help end the oppression so thoroughly described in 13th.