The beginnings of modern incarceration formed from the bones of American slavery.
When legal slavery ended in 1865 following the ratification of the 13th Amendment to the Constitution, it destabilized the economy of the U.S. South. Desperate to rebuild, Southern whites recognized a loophole in the amendment, which maintains that no person may be forced to work without pay “except as punishment for a crime.”
Thus began a new era of labor exploitation, fueled by the mass arrests of Black Americans.
“The New Slavery”
States instituted local police forces to arrest Black people for petty crimes in order to contribute a constant stream of labor. In prisons and jails, the incarcerated performed free or low-cost labor for the state.
Mass media, from popular movies like “Birth of a Nation” to the language used in news articles, purposefully constructed the myth that Black people were predisposed to crime. The Black male rapist preying on delicate white women became a prominent depiction, used to garner support for continued imprisonment.
White Southerners, still reeling from the disruption of their economic system, easily bought into the notion that Black people were “animals.” Politicians perpetrated similar harmful messaging, furthering the belief that Black bodies deserved to be locked up as they were suited for little more than manual work.
The War on Drugs
The prison population in the United States initially climbed but stayed stagnant until the 1970s, when the era of mass incarceration officially began to plague the nation.
President Richard Nixon, in response to Black political movements such as Black Power and the Black Panthers (as well as the anti-war movement), ignited the “War on Drugs” and shaped the American perception of drug addiction as a crime rather than a health issue.
In the film, speakers described the War on Drugs as a ploy to continue using Black bodies for labor and to maintain the systems of oppression on which the country was predicated.
A former advisor to Nixon’s administration admitted to this strategy in an interview with Harper’s Bazaar published in 2016. The film includes an audio clip from the interview:
"The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying?
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.”
The Role of the Legal System
The film relies on strong historical archives and facts, in addition to various speakers who contextualized the information. From U.S. Senator Cory Booker to political revolutionary Angela Davis, the speakers represent a range of knowledge from activism to politics.
DuVernay boldly highlights a steady stream of prison population growth, citing statistics from 1970 when the U.S. had imprisoned 357,292 people to 1980 when the level of incarceration rose to 518,900 inmates.
In 1982, President Ronald Reagan turned the rhetorical War on Drugs into a physical war. Funding for law enforcement skyrocketed, and the number of American police officers tripled.
Policing units mobilized to conduct mass arrests throughout Black communities with similar force following the end of legal slavery in the U.S. South. In 1985, 759,100 Americans were behind bars. Five years later, the number rose to 1,179,200.
The American Legislative Exchange Council, a lobbying group also known as ALEC, has written a number of laws for politicians. As “13th” shows, ALEC is not forthcoming with its involvement; the laws we can attribute to them with any certainty are only because politicians have accidentally left ALEC’s logo on bills. The laws may include, but are not limited to:
These 1970s-80s policies forced judges to give fixed prison terms to people convicted of certain crimes, usually related to drugs. Low-level offenders were most likely to be incarcerated under these laws.
The 1994 measure, originating in California, mandated an automatic life sentence for anyone convicted of three crimes, regardless of the nature or severity of their offenses. According to Stanford Law’s Three Strikes Project, “the sentencing scheme was intended to ‘keep murders, rapists and child molesters behind bars, where they belong.’ However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes.”
Enacted in 1984, these laws require offenders to serve most of their sentence, up to 85%, by limiting or eliminating their eligibility for parole or early release.
The Violent Crime Control and Law Enforcement Act, passed by President Bill Clinton, made three-strikes laws federal, increased funding for law enforcement and prison facilities, and expanded the list of offenses for which the death penalty could be pursued. According to “13th,” it led to the militarization of law enforcement and a surge in Black arrests—and, therefore, a surge of Black children growing up without parents and a generation of Black political organizers silenced.
Since 2005, 26 states have passed these laws, which allow citizens to kill another person in a public area if they feel “threatened” by them. These laws disproportionately affect minorities, especially Black Americans. George Zimmerman, the neighborhood watch associate who murdered 17-year-old Trayvon Martin in 2012, avoided jail time by invoking this law in Florida.
Under these policies, the number of incarcerated Americans nearly doubled by the turn of the century. By 2000, over two million people were incarcerated.
In 2016, as President Barack Obama shared in the film’s introduction, “the United States has 5% of the world’s population, but 25% of the world’s prisoners.” (Today, four years later, that percentage has dropped to 20%).
The same bold, white text that announces the grim statistics illustrating high numbers of shackled bodies also highlights the term “criminal” nearly every time a speaker utters the word. It’s effectively emphasizing how criminality became inextricably linked with Blackness in American culture over time.
The starkness of the white text against a black background is another visual cue, demonstrating the impact and pain associated with the word “criminal” in Black communities who bear the generational trauma of being feared, labeled and imprisoned.
Lived Experiences of Racial Injustice in Rap Music
Between scenes, “13th” explores the role of rap and hip-hop in communicating how Black communities perceive the American justice system, sampling tracks from Killer Mike’s “Reagan” to Usher’s “Chains.”
“Reagan” plays after a discussion of how Nixon’s established “tough on crime” attitude transformed into a very literal War on Drugs for his successor, while “Chains” accompanies a conversion about modern politicians opposing attempts at prison reform and abolition.
Rap music is an important form of expression for Black artists to speak out against racial injustice. The film demonstrates the poignancy of the genre and illustrates the devastation of criminalization and the policies that employ it by sharing the voices, perspectives, and lived experiences of Black rappers.
The Public Health Crisis of Mass Incarceration
According to the Bureau of Justice Statistics, about 44% of prisoners experience chronic disease — including high blood pressure, diabetes, and heart problems — compared with 31% of the general population (2019).
The public health consequences of incarceration are disturbing, mentally and physically. Between maggots in cafeteria food services and medical providers ignoring patients’ requests for care, life in prison places a person at greater risk of illness, disease and death.
When the majority of the prison population are people of color, mass incarceration becomes an attack on the health and wellbeing of the bodies whose labor is valued above their humanity.
And the system of bail, a cash payment offering conditional release to someone who has not yet had a trial, keeps individuals who are low-income (disproportionately, people of color) trapped in dangerous facilities simply because they lack the financial resources to buy their freedom.
As more white Americans undertake the important work of seeking educational resources amid the calls for racial justice rallying parts of the nation, the film “13th” will become a key tool to help us learn, unlearn, and become better allies.