13th: A State-Sanctioned Tool of Racial Oppression

Author: Arpita Sondhi

Edited By: Nishtha Sadhoo

Arpita Sondhi is a second-year student at the Jindal Global Law School. She can be reached at 23jgls-arpita@jgu.edu.in

Credit: Netflix

Introduction 

“We are a nation that professes freedom, yet we have this mass incarceration, this hyper incarceration, that is trawling into it, grinding into it, our most vulnerable citizenry, and is overwhelmingly biased towards people of colour.” 

-Cory Booker (US Senator from New Jersey) 

The Ava DuVernay directed documentary, “13th” offers its viewers a powerful examination of the intersection of race and the legal system, exploring how legislations over the last three centuries have characterised the approach of the U.S.A. government towards communities of colour. The documentary gets its name after the 13th Amendment to the U.S Constitution, which abolishes slavery and involuntary servitude by granting freedom to its citizens but continues to include a loophole by creating an exception for convicted criminals.  Through interviews with several notable scholars and activists such as Angela Davis, Cory Booker, Khalil G. Muhammad, and Malkia Cyril, the documentary offers insights and perspectives rooted in academic expertise and experiences as members of these communities’ providing credibility and a nuanced understanding of complex issues surrounding society, state, law and race War on Drugs”, “Stand Your Ground Law” and “SB 107”, which were shaped by these deep-rooted ideals within the government system, ultimately leading to mass incarceration and vilification of people of colour.  

The Historical Foundations of Racial Oppression in the United States  

When one examines modern American history, it has become nearly impossible to separate race from the legal system. The documentary begins by tracing the historical roots of racial rumination in the aftermath of the Civil War, when slavery had just been abolished.  Post 1865, the white community, especially in the South, was quite aggrieved, as for what was considered the norm for years, had just become illegal. Jelani Cobb, professor of African-American Studies at Columbia University, highlights that slavery had upheld the economic system of southern America, and by abolishing slavery the southern economy took a massive hit. Despite the newfound freedom of the African-Americans, their lives would not improve. Almost immediately after the end of the civil war, mass incarceration of African Americans took place. These prisoners had no freedom and were stripped of their rights, giving way to a new form of slavery i.e. convict leasing. Convict leasing meant leasing out prisoners to private companies into servitude to work for product manufacturing or in fields without pay with the intent to create profit (Howell, 58). This eventually became one of the major mechanisms through which the 13th amendment was weaponized against racial minorities, along with a convenient way for the South to rebuild its economy in the 19th century.  

The Criminalization of African Americans: Media, Law, and Policy   

The documentary goes on to explore the role of media in not just shaping public perception but also provide a reflection of the values of the era. Such is the case in the 1915 film “Birth of a nation” and its depiction of the Ku Klux Klan (K.K.K.) as a heroic force against the ruthless African American criminals. The K.K.K. was an organisation that emerged during the 19th century, its main aim characterised by violent and terror activities that are rooted in the idea of white supremacy. The two hours and forty-five-minute film is a depiction of what the K.K.K. version of American history, through an extremely racist lens by antagonising and vilifying African American males (Bullard, 21). This created what Jelani Cobb describes as a “mythology of black criminality.” These factors, coupled with the growing animosity amongst the white population against members of the black community, fuelled many hate crimes against African Americans in the mid-20th century. Due to the development of new stereotypes and prejudices, they were perceived as ‘evil criminals’, which led to the legalization of discriminatory policies, more popularly known as ‘The Jim Crow Laws.’ 

One such Jim Crow Law was Segregation, which was upheld for the first time in judgement of Plessy v. Ferguson in 1896. The case involved the petitioner, a man of one-eighth African blood, being thrown off a train for sitting in a compartment that was separated for members of the white race. The ruling was against the petitioner as it upheld the separate accommodation for the two races under the doctrine of “separate but equal.” Segregation, now legalised, was implemented not only in trains but eventually in schools, restaurants, beaches among others, and successfully created a divide between these communities leading to further hostility and fear.   

Criminalization of Protest and the Civil Rights Movement  

Lastly the documentary explores how as the Civil Rights Movement began to gain momentum during the 1950s and 1960s, U.S.A. underwent a significant demographic change, with a surge in youth population, leading to an increase in the overall crime rates. However, instead of acknowledging this demographic shift as the primary contributing factor for the escalating crime levels, lawmakers chose to conveniently blame the civil rights for this crime boom. Van jones, founder and president of “Dream Corps” and #CUT50 says “Dr. King people forget, was not this beloved figure that everyone wants to put on a pedestal. He was considered one of the most dangerous people in America by the head of the Federal Bureau of Investigations.” By portraying the leaders of the civil rights movement as criminals, law makers gained the legitimacy they needed to shape crime policies that would institutionalise racial discrimination, disadvantaging members of coloured communities. 

Mass Incarceration and the Legalization of Racial Discrimination 

Policies and laws come are shaped to cater to the wants and needs of society. Naturally they are deeply influenced by the dominant societal beliefs, ideas, biases, prejudices etc. of the time. The false perception by the white dominated society of black criminality at the time became a legitimising factor that enabled the legislature to pass laws that could be used to weaponize the loophole of the 13th amendment. Thus, by successfully establishing a historical context of how racial discrimination has seeped into the different institutions of the government through stereotyping and laws, which have institutionalised discrimination, the documentary is able to set the stage for discussion about problematic laws that emerged in the 1970s-80s till date. 

The first major policy, as discussed in the documentary, was the ‘War on Drugs’ policy introduced by President Richard Nixon in 1971. The documentary examines how the policy was employed as part of Nixon’s political campaign in the South i.e. the “Southern Strategy” to gain the votes of the white community in the south. By associating minorities and immigrants with the drug problem, then declaring it as “Public enemy number one”, the Nixon administration capitalized on the fear among citizens to further its political agenda, leading to state sponsored racial discrimination. Yet it is essential to note, as Michelle Alexander, author of “The New Jim Crow” elucidates, that while President Richard Nixon might have been the one to introduce this policy, “… President Ronald Reagan turned that rhetorical war into a literal one”.  

During the 1980s, when Ronald Reagan had been elected to power, this policy was successfully weaponised against racial minorities. The use of crack cocaine, a relatively inexpensive and easily distributable form of cocaine, became a popular substitute in African American and other minority communities. The Reagan government heavily criminalised the use and possession of crack, and started imposing harsher punishments, as compared to powdered cocaine, by untruthfully claiming that crack was much more dangerous.  Lawrance D. Bobo and Victor Thompson in “Unfair by Design: The War on Drugs Race and the legitimacy of the Criminal Justice system”, explored how in the pursuit of the war on drugs, local law enforcement departments faced a pressure to show progress, a result of which was brutal policing, accompanied by making a large number of arrests in disadvantaged communities mainly belonging to racial minorities (qtd. in Tonry, 1995).  David Dinkins, the 106th mayor of New York city, further elucidates in the documentary how people of colour would receive longer sentencing for the same crime of possession of crack as compared to a white person. As Khalil G. Muhammad, Professor of History Race and Public Policy at Harvard University, states in the documentary “What Regan ultimately does is, takes the problem of economic inequality, of hyper segregation in Americas cities, and the problem of drug abuse, and criminalises all of that in the form of the war on drugs”. The disparity in punishment for crack and powdered cocaine became a means to legitimize police brutality and mass incarceration against communities of colour.   

Corporate Influence and Privatisation of Incarceration  

The documentary explores how in more recent years, the increasing role of the American Legislative Exchange Council (ALEC) has had an extremely negative impact on who drafts laws. The documentary describes ALEC as a “private club”, whose members comprise of politicians and lobbyists, who aim to further corporate interests by drafting and proposing laws that can later be introduced by legislators. The documentary highlights major concerns about the erosion of democratic values in the process of lawmaking due to the growing influence of corporations and politicians in shaping laws that serve their own personal interests than the interests of the public, which invariably affect communities of colour disproportionally. 

  The first example of a law created by ALEC is the ‘Stand Your Ground Law’, which permits use of arms in case an individual feels threatened. Simply put, the law permits the use of firearms upon another person if an individual subjectively perceives a threat. This law directly benefitted those companies with vested interests in the firearms industry as it created a greater demand for weapons. This is deeply problematic, as the perceived threat of black individuals that is so deeply ingrained in the society due to decades of conditioning, coupled with the easy access to firearms, can lead to tragic and unjustified deaths. Such is the case of a young unarmed African-American teenage boy Trayvon Martin, killed by George Zimmerman, who was not held accountable for his actions due to this law. This law essentially codifies the existing problem of racial profiling which can be defined as “…the number of persons of colour stopped by police based on their race” (Mack, Roberts-Lewis, 6).  

The last policy that the documentary examines is SB 107, a law based in Arizona, created by ALEC that allowed the police to arrest individuals suspected of being illegal immigrants. This law too like the Stand Your Ground Law, only exemplifies the racist and xenophobic nature of the laws that ALEC can and has produced in the last few decades. 

These policies were motivated by racial biases and had been deliberately used by those in power to weaponize the fear of crime, to strip communities of colour, especially African American males, of their freedom. It was exploited by policymakers to disrupt the balance of the criminal justice system to retain their grip on power, be it politicians or corporate entities. Furthermore, by reducing the members of these communities to perpetrators of violence, drug abuse and criminality, these policies have successfully dehumanised and further marginalised communities that have already been historically disadvantaged in all societal structures. The documentary in its last ten minutes provides visuals of police brutality against members of the African American community painting a chilling picture of racial discrimination manifesting through state sponsored policies and police brutality. 

Conclusion  

The film “13th” presents an unsettling examination of how racial biases that are rooted in American society since the 19th century have been institutionalised within the American legal and legislative systems through various policies. Through a thorough examination of relevant historical events and policies, the documentary illustrates the systemic racism that has been perpetuated by exploitation of the legal loophole in the 13th Amendment. By providing a historical context of racial discrimination and the various forms it has manifested in starting from slavery to the civil rights movement, the film provides its views with an in-depth understanding of how the issue of racism has moulded itself as per changing times and embedded itself in the minds and institutions of U.S.A. While it is evident that the fight against systemic racial violence is far from over, the film’s Orwellian tone compels us to face this harsh reality and urges us to engage in dismantling systemic racism.   

References 

Bobo, Lawrence D., and Victor Thompson. “Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System.” Social Research, vol. 73, no. 2, 2006, pp. 445–472, www.jstor.org/stable/40971832?seq=7.   

Bullard, Sara. “The Ku Klux Klan: A History of Racism and Violence.” Google Books, DIANE Publishing, 1998, books.google.co.in/books?hl=en&lr=&id=To3kkDqNQdQC&oi=fnd&pg=PA4&dq=kkk&ots=6oSXIOr-o8&sig=aeXRppxlPefpsjHZ2kINUCksw8k&redir_esc=y#v=onepage&q=kkk&f=false. Accessed 2 Apr. 2024. 

‌ Ditton, Paula, et al. Truth in Sentencing in State Prisons. Jan. 1999. 

“Ku Klux Klan.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 22 Mar. 2024, www.britannica.com/topic/Ku-Klux-Klan. Accessed 03 Apr. 2024.  

Howell, Courtney. “Convict Leasing: Justifications, Critiques, and the Case for Reparations.” The Virginia Tech Undergraduate Historical Review, vol. 5, no. 1, 26 May 2017, https://doi.org/10.21061/vtuhr.v5i1.41.  

Mack, Lakerri, and Kristie Roberts-Lewis. “The Dangerous Intersection between Race, Class and Stand Your Ground.” Journal of Public Management & Social Policy, vol. 23, no. 1, 2016, p. 4, digitalscholarship.tsu.edu/cgi/viewcontent.cgi?article=1044&context=jpmsp. Accessed 12 Sept. 2021. 

Rosenfeld, Richard. “The 1994 Crime Bill: Legacy and Lessons – Overview and Reflections.” Federal Sentencing Reporter, vol. 32, no. 3, 2020, pp. 147–152, www.jstor.org/stable/pdf/48713513.pdf. Accessed 12 Mar. 2024. 

13TH . Directed by Ava DuVernay , netflix, 7 Oct. 2016. 

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‌The views expressed in this article are those of the author(s). They do not reflect the views or opinions of Diplomania or its members.

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