I recently watched the powerful Netflix documentary 13th that deals with the scandal of mass incarceration in America. Directed and co-written by Ava DuVernay (who also directed Selma), it is a searing indictment of the war on black people that has been conducted by the criminal justice system. The numbers are staggering. With just 5% of the world’s population, the US has 25% of the prison population. 2.3 million people are locked up and in addition another 3.5 million are either on probation or on parole, meaning that about 2.5% of the entire US population is on the wrong side of the law.
Here’s the trailer.
This Prison Policy Initiative report says that 40% of the prison population is black, wildly disproportionate to their numbers in the population. The film states that one in three black men likely to find themselves in jail at some point in their life. That last statistic alone should be sufficient to convince anyone, unless they are stone-cold racists who think that black men have some innate tendency to commit crime, that there is something deeply and systemically wrong with the justice system in America.
The documentary looks at why this disgraceful state of affairs exists and traces it back to the thirteenth amendment to the US Constitution passed in 1865, following the Emancipation Proclamation in 1863, that formally ended slavery. The amendment states that “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 film points out that the exemption clause “except as a punishment for crime” has allowed the basis for involuntary servitude to be changed, with vast numbers of black people shifting from the status of slaves to that of prisoners. Just as slavery provided an economic benefit to the economy in terms of cheap labor, incarceration of black people provides similar benefits and as time went by, new reasons were found to put black men in jail, stoked by racist fears that were whipped up that they were predators out to steal, kill, and rape. Films such as Birth of a Nation (1915), widely hailed by white audiences as a masterpiece and that was wildly popular, played important roles in feeding those perceptions.
Following emancipation, all manner of new laws were passed that enabled black people to be jailed for the most trivial of things, such as loitering. The Jim Crow era enabled further incarceration because it was almost unavoidable that black people would run afoul of the many petty things that were now offenses, such as sitting in the wrong seat or drinking from the wrong water fountain.
Following the civil rights legislation of the 1960s that outlawed Jim Crow, the US found new reasons to jail black people. The uptick in crime that began in the 1970s and the war on drugs, especially the use of crack cocaine that was used in the black communities unlike powdered cocaine that was favored by whites, became the main weapon to use to jail people. John Ehrlichman, president Richard Nixon’s close aide, later confessed to reporter Dan Baum the cynical reasoning behind the ‘law and order’ campaign that they ran.
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people,” former Nixon domestic policy chief John Ehrlichman told Harper’s writer Dan Baum for the April cover story published Tuesday.
“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,” Ehrlichman said. “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.”
But it did not stop with Nixon. Ronald Reagan and George H. W. Bush continued those wars. Bill Clinton’s 1994 Omnibus Crime Bill, the ‘three strikes and you’re out’ legislation, and mandatory minimum sentencing all helped to balloon the prison population. The language of ‘super predators’ that was widely used by politicians then, including Bill and Hillary Clinton, was used to instill fear of black people that encouraged whites to look aside as more and more prisons were built to warehouse people. These prisoners provide cheap labor for many industries because the dirty secret is that while the US criticizes other countries for using slave labor and sweatshops, the prisons provide private companies in the US with that same source of almost free labor. The privatization of the prison industry then created another incentive to jail people, and corporations like Corrections Corporation of America (CCA) (now trying to improve its appalling image by changing its name to CoreCivic) heavily lobby for policies that increase the numbers of people in detention. The rounding up of undocumented immigrants is another source of income for the private prison industry and many state and local governments.
It is a dirty little secret that the justice system would collapse if every person charged with an offense demanded their right to a trial, and so we have the current ‘plea bargain’ system that is a scandal. Many innocent people are coerced into confessing to crimes they did not commit because if they do not, they are threatened with prosecution for much more serious crimes that could result in much longer prison sentences. Currently, arresting people for petty offenses like having a broken tail light and then charging them bail that they cannot afford to pay results in many people being in prison without even being charged with a crime. And when they are charged, only a tiny fraction of cases (about 3% of civil cases and less than 10% of criminal cases) actually go to trial. A highly underfunded public defender system means that poor people have little or no chance of getting justice. There have been suggestions that the only way to get meaningful reforms is to have everyone demand a trial and crash the system.
The Prison Policy Institute has a compelling report that provides a detailed breakdown in the form of charts of who is in prison and why and highlights the disgrace of the number of people who go in and out of prison but are never charged, what it calls ‘jail churn’.
While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.
In the 1973 British film O Lucky Man, Alan Price sings about money and justice, showing that using the justice system to oppress the poor is not just limited to the US, except that the US system is particularly vicious and racist.