13th: DuVernay’s Seminal Documentary–What You Need to Know

“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.”  The 13th Amendment to the U.S. Constitution, Section 1. Passed by Congress on Jan. 31, 1865“We are a nation that professes freedom yet have this hyper-incarceration system that is grinding into it our most vulnerable citizenry – and is overwhelmingly biased towards people of color.” United States Senator Cory Booker


Nominated for two Academy Awards and four Golden Globes, writer/director AVA DUVERNAY’s most recent feature, “Selma,” was one 2015’s most critically-acclaimed films. DuVernay’s directorial work has spanned narrative and non-fiction film, including the documentaries “This is The Life” and “Venus Vs,” as well as the narrative feature “Middle of Nowhere,” which won the 2012 Sundance Film Festival’s Best Director Prize. In Fall of 2016, her first television series as executive producer, writer and director, “Queen Sugar,” debuted on Oprah Winfrey’s network, OWN. DuVernay distributes and amplifies the work of other people of color and women directors through her film collective ARRAY, named one of Fast Company’s Most Innovative Companies in Hollywood for 2016.

The United States has just 5 percent of the world’s population – but contains 25 percent of the world’s prisoners. In other words, one out of every four prisoners in the world is in America. In 1972, the U.S. prison population was 200,000; today it’s 2.3 million. And 1 in 3 black men can expect to go to prison in their life.

History has recorded the 13TH Amendment to the U.S. Constitution as the supposed end to what is called this country’s Original Sin. But practically from the moment slavery was outlawed, its horrors became politicized and systemic, a genocide in plain sight. Hauntingly, the blueprint for its continuation is a simple phrase in the Amendment itself: “…except as a punishment for crime.”

That is the powerful and unforgettable revelation of “13TH,” Ava DuVernay’s searing, sweeping documentary that digs into how America’s politics, corporate structure, police militarization, media culture and legal system have colluded for over 150 years to imprison African-Americans in second-class-citizen status. Generation upon generation have been victims of an incarceration machine that ruins lives and communities, obliterates families, and cripples the morality our democracy is built on.“13TH” will open the 54th New York Film Festival, the first non-fiction film to receive that honor.

In her first feature since directing the celebrated, Oscar-nominated drama “Selma” (2013), DuVernay examines the aftershocks that have reverberated through American society and the justice system since the end of slavery. By burrowing deep into our national psyche, exposing damning documents and potent archival footage, and drawing from interviews with an array of activists, politicians, historians, and leaders, DuVernay has created a work of crucial and illuminating historical scope.

“13TH” shows how a series of interconnected traps – from over-aggressive policing to Presidential platforms, from judicial inequality to for-profit incarceration, from campaign code words to a culture of dehumanization – has been used to maintain a system that is slavery in everything but name.


At the end of the Civil War, the Southern economy was in tatters. “Four million people who were formerly property, and a crucial part of the economic production system in the South, were suddenly free,” notes Jelani Cobb, Director of the Institute for African-American Studies.

“What do you do with these people?”

These former slaves “had to rebuild the economy of the South after the Civil War,” says Henry Louis Gates Jr., Director, Hutchins Center for African and African American Research.

In that loophole of the 13th Amendment, slavery and involuntary servitude is outlawed except as a punishment for crime. Thus, a “prison boom” immediately began, with the mass arrests of African-Americans for relatively minor crimes such as loitering and vagrancy. These charges were used against former slaves to force them to build infrastructure and restart the nation’s economy.

 The country’s emotional life, however, was being manipulated as well. And so began what Cobb calls “a mythology of Black criminality.” Notions of “out-of-control former slaves” preying on white women, exhibiting the most animalistic of behaviors, were woven into the collective unconscious of the United States just as surely as the stereotype of “genial black figures like Uncle Remus” previously were, says Cobb.


That fear was popularized and commodified in a singularly momentous way in 1915. “13TH” shows that in the second decade of the 20th century, the new medium of motion pictures set a template for American racism when D.W. Griffith’s Civil War drama “The Birth of a Nation,” adapted from the book “The Clansman,” became a cultural event. “It was the first blockbuster,” says Khall Muhammad, director of the Schomburg Center for Research in Black Culture, “hailed for its artistic content and political commentary.”

In the New York Times review of “Birth of a Nation,” published March 3, 1915, the paper said that “This film version of some of the melodramatic and inflammatory material contained in ‘The Clansman’…is an impressive new illustration of the scope of the motion picture camera. …In terms of purely pictorial value the best work is done in those stretches of the film that follow the night riding of the men of the Ku-Klux Klan, who look like a company of avenging spectral crusaders sweeping along the moonlit roads.”

The extraordinary popularity of “Birth of a Nation” – which President Woodrow Wilson proclaimed was “History written by lightning” – recast the South’s loss of the war as a mythic martyrdom; it cemented salacious images of blacks as bestial, feckless and untrustworthy criminals; and it turned the Ku Klux Klan into heroic figures. As “13TH” illustrates, it contributed to the resurgence of the Klan in the 1920s and even provided iconography by inventing the burning cross, an image Griffith concocted for its cinematic value.

After the film’s box office success, the Klan rode its popularity to a newfound power. As “13TH” notes, at the 1924 National Democratic Convention in New York, an estimated 350 delegates were Klansmen.

“What we overlook about ‘Birth of a Nation’ is that it is a fairly accurate prediction of the way race would operate in the United States,” says Cobb, who calls the film “a prophecy.”

With the burst of popularity following “Birth of a Nation” came another wave of terrorism in America. “13TH” goes on to present nearly 100 years of systemic devaluation, as the limits that had been imposed on blacks during slavery evolved into what were considered “more socially acceptable” forms of segregation and Jim Crow laws – along with an unrelenting nightmare of intimidation and violence.

“Throughout American history, African-Americans have consistently been controlled through systems of racial and social control that appear to die, but then are reborn in new forms tailored to the needs and constraints of the time,” Michelle Alexander, author of “The New Jim Crow,” says in “13TH.”

“After the collapse of slavery, a new system was born, called ‘convict leasing,’ which was a new form of slavery,” Alexander says. “Once convict leasing faded away, a new system was born yet again, a Jim Crow system, that relegated African-Americans to a permanent second-class status.”


In 1970, the United States prison population was 196,441.

The Civil Rights movement and its sacrifices, bravery and broad battles are shown in “13TH” as another spark for repressive governmental change. The fact that Martin Luther King Jr., the Freedom Marchers, the 1965 Civil Rights Act and the Black Panthers all shared the 1960s with a demographically and statistically inevitable rise in crime provided Richard Nixon with an opportunity to champion “law and order” during his 1968 and 1972 presidential campaigns. The odds were far from even: Black leaders were assassinated. African-American intellectuals were jailed, fined or chased from the country.

As Henry Louis Gates emphasizes, “The whole Black Panther movement was criminalized and destroyed systematically by the government.”

Angela Davis, Presidential Chair and Professor, History of Consciousness Dept. at the University of California- Santa Cruz, says, “It was with Nixon at that time and during the ‘law and order’ period that the word ‘crime’ began to stand in for ‘race.’”

This was the cornerstone of Nixon’s “Southern Strategy,” which brought white Southerners – for years considered by themselves and politicians as die-hard Democrats – into the Republican fold, even as those parties were changing internally. One key to the strategy was Nixon’s sweeping attack on drugs.

 The 37th President’s oft-repeated mantra spun on his argument of, “We must wage what I call total war on public enemy No. 1 in the U.S. – the war on dangerous drugs.” The chaos of inner cities, which in Nixon’s view was exacerbated by the Civil Rights movement, needed to be attacked.

His policy allowed for a resurgence in mass arrests. And the film analyzes how it was an opportunity to create an alternate reality that served the Administration’s purposes. As one scene in the documentary shows, Nixon’s former aide John Ehrlichman later admitted to the ruse:

“The Nixon campaign in 1968 and the Nixon White House after that had two enemies: The antiwar left and black people…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 those communities.

We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Drugs were an engine for incarceration. Hundreds of people went to jail for minor offenses. But they were not the only target: The Black Panthers were labeled by FBI chief J. Edgar Hoover as “The greatest threat to the nation.” Davis was placed on the FBI’s Most Wanted Fugitives List. Struggle was painted as criminal.

“The prison population was mostly flat throughout the 20th century,” Bryan Stevenson, Founder of the Equal Justice Initiative, explains. “That changed in the 1970s, which was decidedly marked by the term ‘mass incarceration.’”


In the 1980s, the politicization of prison terms and “the war on drugs” fully arrived with the presidency of Ronald Reagan, who turned Nixon’s rhetorical war into an actual war. Crack cocaine and its users were demonized and arrested, while use of cocaine by whites was brushed aside. As no less than former Congressman and Speaker of the House Newt Gingrich admits in “13TH,” “We should have treated crack and cocaine as the same thing. It violated a sense of core fairness.”

The balance was clearly tilted. African-Americans arrested with just one ounce of crack cocaine received the same amount of prison time as someone caught with 100 ounces of powdered cocaine, the drug of choice for the era’s yuppies, trust-funders and self-proclaimed Wall Street “Masters of the Universe.”

“If you were black with crack cocaine, you were basically going to prison for the rest of your life.” Says Shaka Senghor, Director of Strategy Innovation, Cut50, a national bipartisan effort to reduce America’s incarcerated population. “And if you were white with cocaine, you got a slap on the wrist.”

In the 1988 presidential campaign, Vice-President George H. W. Bush and Massachusetts governor Michael Dukakis notoriously debated the furlough program that Bush said allowed a felon in Dukakis’ state, Willie Horton, to commit more crimes including rape, murder, and armed robbery while on a “weekend pass” from prison. The issue of who would be tougher on crime become paramount, tilting the election Bush’s way. The fears Horton represented drove the election, bringing up issues literally seen 100 years earlier.

“It went to a primitive American fear, something that was a staple of the white imagination since the time just after slavery,” says Cobb.


In 1990, the U.S. prison population was 771,243. In 2000, it was 1,394,231.

Democrats would race to the issue just as fast as Republicans, in order to avoid being seen as soft. In the years following President Bill Clinton’s 1992 election, he introduced the “three strikes” system – and what he called a “21st-century crime bill” – with plans to put more police on the street. Meanwhile, the films points out how television shows like “Cops” made the pursuit and arrest of young black men a kind of constant propaganda, reinforcing stereotypes and fueling a media obsession with young men who were to be called “super predators” — a label repeated by then-First Lady Hillary Clinton.

“Black people in general, but black men in particular, are overrepresented in news as criminals. That means they are shown as criminals more times than is accurate than they are actually criminals, based on FBI statistics,” says Malkia Cyril, Executive Director, Center for Media Justice.

Adds Cory Greene, an activist and co-founder of H.O.L.L.A (How Our Lives Link Altogether), “When you make people afraid, you can always justify putting people in [jail].”

The politically effective, imminently impactful phrase “super predators” conjured up an adrenalized image of the racist portrayals seen in “Birth of a Nation.” The truth, however, is that a generation of young African-Americans were growing up without leaders or fathers. And for those who emerged from prison after serving years for often minor offenses, their rights – including the right to vote – were stripped from them.

“That was absolutely a use of political force,” Gina Clayton, Founder and Executive Director of the Essie Justice Group, says in “13TH.” “They forced millions of people who would otherwise not be in prison today into prison. They forced families to be broken.”


Black men account for approximately 6. 5 percent of the U.S. population, but make up an astounding 40.2 percent of the prison population – with 1 in 3 young black men expected to go to prison in his lifetime. The United States now has more African-Americans under some type of criminal supervision than it did all of the slaves in the 1850s.

Over the last two decades, an interconnected series of systems have been put in place by a different kind of “Super Predator” – this one, however, is extraordinarily powerful and called the American Legislative Exchange Council, or ALEC. Stop-and-frisk policies for anyone the police thought looked illegal; harsher sentencing for minor offences; corporate greed; and the need for cheap labor has linked up with ALEC’s influence in the American legal system. Founded in 1973, ALEC counts among its goals the merging of legislation and corporate interests, and one of its interests for years has been the privatization of prisons and the profits that connection can yield.

It’s here that “13TH” pulls back the curtain on the merging of multibillion-dollar business, lawmaking and racism to reveal further how basic freedoms have been stripped away from African-American communities. ALEC’s job is to propose laws to Republican legislators, so major corporations essentially write bills – and 1 in 4 state legislators in the U.S. is a member of ALEC. Through this process, which has included Wal-Mart – the biggest retailer of bullets in the world – and, most crucially, the Corrections Corporation of America (CCA), ALEC has been able to shape crime policy in the United States to keep a nonstop, modern-day slavery system intact.

“There are people out there desperately trying to make sure that the prison population does not drop by one person, because their economic model needs that,” says Stevenson.

Among the bills CCA promoted by ALEC was Bill Clinton’s three-strikes rule and mandatory minimum sentencing. ALEC even has a hand in changing jury instructions in states such as Florida – so when George Zimmerman was put on trial for the 2012 killing of 17-year-old Trayvon Martin, his jury could hear how someone like Zimmerman had the “right to defend himself” under Florida’s Stand Your Ground law, but they could not hear what rights Martin, followed and killed by Zimmerman, also had.

The “Stand Your Ground” bill was written by ALEC.

ALEC’s influence isn’t simply felt in getting bodies into prison – they also have had a say on what goes on inside.

As “13TH” makes clear, prison industries – forcing prisoners to work for low or no wage – have gotten so big that it’s very difficult to do away with them. A network of vendors, major manufacturers and corporations rely on prison labor to aid their bottom line. Further, the American Bail Coalition, unlike CCA, remains a member of ALEC, and so the privatization of parole and probation still gets a profit.

And “13TH” shows how the model is moving into a kind of dystopian future: As the nation’s overcrowded prisons run out of space, GPS monitoring and ankle and wrist braces make it possible for juveniles to serve prison terms through home confinement. “We may wake up and see that we are incarcerating young people right in their own communities,” says Glenn E. Martin, Founder and President of JustLeadershipUSA (JLUSA).

“13TH” opens our eyes to the human cost of such inhumane policies. As Sen. Cory Booker (D – NJ) points out, “People think that the criminal justice system is about judges and juries. That’s not the case.”
Prosecutors basically tell defendants that they can make a deal and get them out in three years, or they can go to trial and face 30 years. Approximately 97 percent of people locked up are in prison because of plea bargains.

Even after serving time, the stripping away of freedoms continues. The stigma of felony makes it impossible to vote, and very difficult to get a job or government aid. In Alabama, 30 percent of the black male population has permanently lost the right to vote as result of a criminal conviction.

This year’s presidential candidates, Hillary Clinton and Donald Trump, are heard and seen in the second half of “13TH,” yet the positions they take in response to the Black Lives Matter movement and the epidemic of police killings in America speak volumes. They make brief appearances earlier in the film: Clinton as First Lady in the 1990s speaking about “super predators,” and Trump at a press conference in 1989 calling for the death penalty for the five young men found guilty in the Central Park jogger case. (The five defendants were later exonerated and released after serving between six and 13 years in prison.)

Seen in footage from the current campaign for president, Trump’s on-stage response to rally protestors brings to “13TH” a disturbing echo of an era when public lynchings and beatings were terrifyingly common. “I love the old days – you know what they used to do to guys like that in a place like this? They’d be carried out on a stretcher, folks,” Trump notoriously says at one rally, as video shows the ugly emotions he brings out in his audience. The phrase “law and order candidate” is back with the same dog-whistle intentions.

The cumulative cost to African-American communities is chillingly familiar and yet disarmingly new, as experts in “13TH” speak of how cellphone footage can now broadcast atrocities. The film’s experts discuss the importance of seeing the images of brutality and killings, from seeing the body of Emmett Till at his open-casket funeral in 1955 to police shootings today. Much as the Civil Rights movement used images of children being attacked by dogs or crowds being firehosed, cellphone footage is instrumental in making the whole world watch. Yet its mass incarceration that authorizes this type of violence, the film argues.

Toward the end, DuVernay includes the video of Eric Garner’s death in police custody, along with the killings of other young men – Oscar Grant, Tamir Rice, Sam Dubose, Jason Harrison, Laquan McDonald – all with permission of the victims’ families. Many more names and faces are listed. The segment is one of the most powerful filmic experiences in this or any year, a procession of heartsickness and horror.

That Amendment dating back to what we call a less-civilized era abolished a sin, but “13TH” shows that America’s system of oppression never went away.