Constitutional Crisis

Ava DuVernay previews her comprehensive documentary on the damning history of mass incarceration of blacks in the United States

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.
—The 13th Amendment, passed by Congress on January 31, 1865, ratified by the states on December 6, 1865

Ava DuVernay’s new documentary The 13th is a disturbing, expansive chronicle of national shame, excavating with clinical precision the long history of racial inequality in the United States. It focuses particularly on how the nation has produced the world’s highest rate of incarceration—a shocking opening statistic informs us that America represents five percent of the world’s population, yet is home to nearly 25 percent of the world’s prisoners—and how a disproportionate majority of those imprisoned are African-American.

DuVernay’s basic premise is that the 13th Amendment, while guaranteeing emancipation for slaves, subsequently served as a loophole for ensuring that vast swathes of America’s black population would be doomed to a lack of liberty. In well-researched and cogently structured segments illuminated by on-screen statistics, The 13th investigates, among other state-sponsored forms of social malaise, the old Southern practice of convict leasing (the provision of prisoner labor to private parties), the ruthless application of Jim Crow laws, and the deleterious effects of the racially coded “war on drugs.”

Underscoring DuVernay’s clout, The 13th features a vast range of insightful, high-profile talking heads, including Michelle Alexander—author of The New Jim Crow, about the prison-industrial complex, an evident guiding light for the film—and legendary activist Angela Davis. Political advocate Van Jones is especially engaging; his live-wire observations on historical FBI chicanery, Nixon’s Southern strategy, and the systematic decimation of black leadership, from the assassinations of Fred Hampton and Dr. Martin Luther King Jr. to the current exile of activist Assata Shakur, are at once riveting and infuriating. This patchwork of smart critical voices lends the film an absorbing, immersive quality.

In places, The 13th recalls the work of Marlon Riggs, the late documentarian whose propulsive, tightly argued films Ethnic Notions (1986) and Color Adjustment (1992) assess the real-life implications of anti-black media stereotypes. DuVernay’s film uses some especially damning clips from D.W. Griffith’s The Birth of a Nation (1915) as a launchpad to explore how black people have been systematically criminalized in the eyes of the law and the public, with males in particular coded as rapists and bogeymen.

The 13th, which feels like a thematic companion piece to her civil-rights drama Selma (2014),bolsters the sense of DuVernay as a figure in the American film landscape without obvious parallel—perhaps Spike Lee in his ’90s prime is the closest comparison. She is an influential chronicler of the African-American experience who operates in both fiction and documentary (see her excellent 2010 film, My Mic Sounds Nice: The Truth About Women in Hip Hop, which shares a similarly crisp, clean aesthetic); and who works effectively with larger budgets, and at the grassroots level as well.

Through her company African-American Film Festival Releasing Movement (AFFRM), a community-based distribution collective founded in 2010, DuVernay has released black independent cinema that would otherwise not have seen the light of day, including her own early films I Will Follow (2010) and Middle of Nowhere (2012). An avid Twitter user with a large following, she has been extremely busy of late, working as producer-writer-director on the forthcoming TV series Queen Sugar. Meanwhile, her adaptation of Madeleine L’Engle’s young-adult fantasy novel A Wrinkle in Time is slated to begin shooting in November, making her the first female director of color to work with a budget of over $100 million. But news of The 13th came out of the blue for the public, as did the announcement that its world premiere would mark the first time a documentary has opened the New York Film Festival in its 54-year history.

After viewing an early cut of the film, I spoke with DuVernay by phone from Los Angeles to discuss her film, which is emerging in the lead-up to a racially charged election, at a national moment when the increasing circulation of real images of black death—from cell phones to police dashcam footage—forces us to reconsider the definition of documentary itself.

How did you get involved in the project?

I was approached by Netflix a little bit before making Selma, asking if I was interested in doing anything with them. I continued those conversations with [Netflix VP of Acquisitions] Lisa Nishimura, a really great lady. After Selma I said I’d love to get back into documentary filmmaking, and that I would tinker on something as I worked on another project. She gave me the latitude to do that. We talked specifically about the area I wanted to look into, which was criminal justice, and so it evolved into what it is. At first it was an exploration of the prison-industrial complex, an exploration of police brutality—there were a lot of things that I had to investigate to find the spine of it. Netflix has given me the room and time to do that.

One very striking aspect of the film is how it draws a long line from the beginning all the way up to the present, similar to what Ta-Nehisi Coates did in his 2014 essay in The Atlantic, “The Case for Reparations.” You’re working with an enormous, multi-stranded history of state oppression, running through slavery, Jim Crow, FBI crackdowns, the war on drugs, mass incarceration. Can you discuss the editing process?

You’re right, it was a challenge to take generations and generations of oppression and try to make that manageable and palatable, something that folks can drink in, get into their bloodstream, and then actually feel it and understand it. The process was very intimate, detailed, painstaking. This is an editor’s showcase, really. My editor, Spencer Averick, is the only editor I’ve ever worked with, from my very first shorts, on every single film and every commercial, and we’ve done docs together before. We came into this project knowing that these issues are important, and that this was definitely the biggest thing we’ve ever tackled. The cutting-room floor is full of sequences about different parts of this web that we were trying to untangle. This could definitely have been a six-hour miniseries.

We tried to prioritize things in a way that would allow people interested in certain subjects to go deeper if they wished—there’s pretty much another film that goes deeper into every issue we touch on. If you’re interested in convict leasing and how slavery marries with current-day prisons, you can watch Samuel D. Pollard’s Slavery by Another Name [2012]; if you’re interested in plea bargains, you can watch Dawn Porter’s Gideon’s Army [2013]. We were satisfied in saying, “You know what, we’re gonna just kiss this, just touch it, let people see it briefly, and then move on to the next.”

In what way was making The 13th a learning process for you?

Well, I got to confront, and had to deal with, the stereotypes I’ve held. A big one for me was the notion that our current national status of having the world’s highest incarceration rate was the doing of Republicans, the doing of conservatives. In analyzing, investigating, and pulling back the layers, you start to see that there’s been political maneuvering that’s crossed party lines in very disturbing ways. The ways in which the black body has been used for such maneuvering, regardless of party, is an ongoing through-line that’s been happening for several generations. All this stuff is happening under the mask of time.

When I line up all of these instances on a timeline, I can see the continuum, the momentum that it has gained, how it’s blossomed, or rather festered. So often, as human beings, we live fully in the present moment and we feel like it is all happening now and it’s never happened before. But this has been happening and will continue to do so unless we break this continuum, unless we shatter the timeline.

In all of your research, was there anything that really shocked you?

Oh goodness… I wasn’t very up on ALEC [American Legislative Exchange Council]. I’d heard about it, but trying to drill down into defining it required a lot of investigation. It’s a stunning, stunning thing. ALEC is so well funded and connected, it’s like a private club with politicians and corporations. The corporate members create fake laws, give them to the politician members, put money behind it, and those fake laws become real laws. I mean, wow. First of all, it’s genius [laughs], but it’s just too bad that the laws are not good for the people. I learned other things, but ALEC was the biggest piece of all, in the light of how it’s connected to the “stand your ground” laws, which became a very hot topic in respect to the Trayvon Martin/ George Zimmerman case, and immigration laws.

Do you think that your film might have an impact on the forthcoming presidential election? Donald Trump is in there as a key actor, talking about the Central Park Five, the five black teens for whom he demanded the death penalty in 1989. Hillary’s in there, with her infamous comment about some black youths being “Superpredators.”

We’ve added in a few things that we have come across [during the summer]—the conventions included. We were still very much editing throughout this turbulent summer. It’s not much different than when we were editing Selma, right during the time of Ferguson. So some of that has definitely made it into the cut. My hope is that the movie gets people thinking about these issues more deeply and holding whomever they vote for accountable, or making people want to vote. We could have really forced ourselves into a national conversation by highlighting those two key actors [Trump and Clinton] more, but this isn’t really about them—this is a piece that’s evergreen, I hope. These issues have been in process from the time of our great-grandparents and before. Hopefully people can watch the film and say: “Wow, this was a turning point.” This is a turning-point year, with where we are as a country, our race relations. It’s going to be important to know how we got to this place. The question will be what happens from here.

As one contributor in the film says, African-Americans and black people worldwide are likely going to be intimately familiar with many of the issues and experiences you feature in the film. Did you consider a target audience while making The 13th?

I was an African-American Studies major in UCLA, and I grew up around circles of community that are always talking about liberation, so I have a certain worldview. I’ve shown the film to black folk who are super familiar with [black liberation] movement issues, and they’ve said, “Wow, amazing. You have it all in one place, and you make connections between one thing that you know and another thing that you know but have not yet put them together and figured how they affect each other.” I’ve shown it to black folk who are just not as well-versed about such issues, and it’s been very emotional. I’ve shown it to formerly incarcerated people, politicians, white allies and accomplices, and folks who know nothing about it. I’ve shown it to conservatives. The main thing that comes out is this: these folks feel like they want to do something, whether it’s contributing to an organization with time, talent, or resources, or changing their own way of processing information.

There’s good work to be done with folks simply re-assessing their own personal views about the relationship between black people and the police, the relationship between the police and communities of color, what we think about formerly incarcerated people, what we think about currently incarcerated people, and prison. Whether you go out and start a petition, or have some kind of formal dissent, or whether you change your own mind about the way that you are processing this stuff and behaving, all of that is good work. My hope is that the film affects folks on some level. I don’t have a preference as to how.

There’s a powerful segment in the film which addresses the function of images of black death and trauma, from photographs of whipped slaves and lynchings, to Mamie Till’s decision to let her son’s dead body be photographed and reported [14-year-old Emmett Till was lynched in Mississippi in 1955], up to today’s viral videos of police killings of people like Samuel DuBose and Philando Castile. Can you discuss your line of thinking on this?

I’ve had a real conversation internally about it. I just want it to be part of the fabric of the film. We tried to give it context, to talk about it historically, about the ways in which we’ve been forced to bear witness, chosen to bear witness, and asked others to bear witness to this death and destruction that comes from oppression and racism. It’s addressed in the film in a way that we feel is respectful to families and victims but that also peels back this layer of the black experience in America. People can judge for themselves when they get there.


Ashley Clark is a film critic and programmer. He is a contributor to Film Comment, Vice, The Guardian, and Reverse Shot, and his first book, Facing Blackness: Media and Minstrelsy in Spike Lee’s Bamboozled (Critical Press), is available now.