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The Slavery Loophole

Ava DuVernay’s new documentary sounds the alarm about how the Constitution enables our prison industrial complex

It made sense that the media event for Selma director Ava DuVernay’s new documentary, 13th, displayed Constitutions alongside the coffee. Sitting next to the refreshments were several pocket-size copies of America’s flawed foundational document, their front covers emblazoned with the film’s poster: the silhouette of a black inmate, head bowed, in leg irons and a prison uniform. “From slave to criminal with one amendment,” read the bookmarks that lay inside.

The comparison was not hyperbolic. 13th, the first documentary to open the New York Film Festival in its 54-year history, confronts our mushrooming mass incarceration crisis — triggered initially by a Constitutional loophole. The 13th Amendment is the one everyone says ended slavery, but it also contains a phrase that has been exploited to make America the world’s most prolific jailer, and this is the focus of DuVernay’s film:

“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.”

If you commit a crime, you can be still be a slave in America. But instead of picking cotton or feeling the brunt of the whip, you’ll be maintaining the private prison you’re caged in, filling government labor gaps, or supplying companies whose goods get manufactured by inmates. (Until recently, Whole Foods Market used prison labor.)

“Prison is a place you go because you’ve ‘done something wrong,’” DuVernay told MTV News. “You’re supposed to sit there and do your time.”

She continued, “It doesn’t mean that we aren’t gonna feed you properly, we’re not going to make sure that if you’re sick you’re not taken care of; it doesn’t mean you’re going to be ostracized and kind of isolated from your family. It doesn’t mean that you’re going to have to pay us to punish you by exorbitant phone rates and exorbitant commissary goods and just what it takes to live, what it takes to wash yourself, what it takes to take care of yourself as a human being. You will pay us for that as we make money off of you sitting there. That’s nuts. That’s what this country does.”

All of those issues get plenty of light shined upon them in DuVernay’s blistering documentary. 13th takes us from the end of the Civil War to the racist propaganda of (the original) The Birth of a Nation, through Jim Crow and the disastrous Reagan era. When the journey’s complete, you see a durable thread of systemic, generational injustice running through a row of cowardly politicians and ruined black lives.

The film takes care to highlight the factors that have led to the disproportionate imprisonment of black people in this country in the first place. It criticizes the racial disparity in drug sentencing that began in the 1980s (something even Newt Gingrich steps in to condemn). It gets into how the American Legislative Exchange Council, or ALEC, expanded the use of prison labor in the mid-’90s and has written many of the laws that have made an already unbalanced justice system even more so. And it dissects how Bill Clinton’s 1994 crime law did untold damage to communities of color, shaped the public mindset about imprisonment, and helped lead to the over-militarization of the police.

Of course, unlike antebellum slavery, a lot of people exploited by the modern criminal justice system are eventually released. But DuVernay — who also recently cocreated a new television drama, Queen Sugar, that wrestles with life after incarceration — addresses recidivism in 13th. Commenters like Bryan Stevenson of the Equal Justice Initiative and Michelle Alexander, author of The New Jim Crow, as well as several experts who were incarcerated themselves, connect the dots from the mental trauma of slavery to the stigmatization of a felony record. In the end, it makes an argument for a complete reevaluation of how this nation deals with crime, and offers one revolutionary option: getting rid of prisons altogether.

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This is an idea Angela Y. Davis, whose work and voice are featured in 13th, proposed in her 2003 book. The famed feminist, educator, and civil rights activist realized that such an idea is too radical for many in our society to seriously consider. But, as she notes, Americans used to say that about other things, too.

“Slavery, lynching, and segregation,” Davis writes, “are certainly compelling examples of social institutions that, like the prison, were once considered to be as everlasting as the sun. Yet, in the case of all three examples, we can point to movements that assumed the radical stance of announcing the obsolescence of these institutions.”

I thought of Davis’s argument when DuVernay told me that she’s a prison abolitionist. She not only considers it possible, but necessary.

“It’s not going to be fixed with tape and Band-Aids. You can’t go over and nail up that side of it and hope it holds up. You got to tear that house down,” she added. “It needs to be dismantled and started again. Abolishing prison as we know it today and working together to come up with a more humane, more dignified, more fiscally responsible, more practicable, sensitive way to render criminal justice.”

The “how” of that massive project may have to wait until this nation starts thinking more critically about race. Right now, we’re still fighting to get some folks to recognize that racism is a bigger issue than “political correctness,” and that we can’t lock away our problems. After all, the greatest evils in this society aren’t all behind bars. Some actually built the jail.