’13th’ And The Culture Of Surplus Punishment

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Above photo: Michelle Alexander, author of the game-changing book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” plays a major role in “13th.”

NOTE: The 13th Amendment (1865) ordered the abolition of slavery in the United States, except as punishment for a criminal conviction. In other words, federal law permits the use of incarcerated persons for free labor by state officials and also by the private sector.


From the late 1800s until now, unpaid prison labor has been the pattern, practice, and collective mindset of various states across America. Southern states have taken particular advantage of the wording of the 13th Amendment, and in turn, current resistance movements have risen out of prison-dense states like Texas and Alabama, where units are often compared to plantations.

The degrading treatment of people in prison, however, is a nationwide issue, as shown in the widespread imposition of solitary confinement, assaults by guards, and medical neglect.

On Saturday, August 19th, prison activists and everyone who wants to join in will march in Washington DC, San Jose CA, and other cities around the country. Click here for more information.

Ava DuVernay undertook the documentary “13th” in order to explore and bring attention to the Prison Industrial Complex.[1] The film’s title refers to the 1865 amendment to the U.S. Constitution, in which slavery was abolished “except as a punishment for crime whereof the party shall have been duly convicted.” The story told by “13th” thus goes back to the early chain-gangs of Black prisoners – men arrested for petty offenses under the post-Civil War Black Codes who were then contracted out to perform labor that they had previously performed as privately-owned slaves. Now they were under state control, but they still worked for no pay.

Images of 19th-century chain-gangs appear at both the beginning and the end of the film. In between, we are presented with archival clips and commentary reflecting the history of Black oppression in the United States from the time of the 13th Amendment right up to the present. What the film most directly brings out is the deadly continuity of the oppressive practices – ranging from disenfranchisement to lynchings to police attacks – across superficially distinct historical periods.

What it encourages us to reflect on, beyond this, is the degree to which the structures of oppression have effects that go far beyond their immediate victims. This global impact of the Prison Industrial Complex is suggested in the clip that we see from a 1980 speech by right-wing strategist Paul Weyrich, where he articulates in six words what has remained to this day a central though rarely acknowledged tactic of the system of domination: “I don’t want everybody to vote.”[2]

“13th” is certainly a film that everyone should see – especially that whole vast sector of the U.S. population which, whether through prejudice or inertia or media-fostered ignorance, self-righteously refuses to look at anything that might dislodge its fiercely worn ideological blinders. With racist assertions no longer officially acceptable in the U.S., we all need to be reminded – as we are by “13th” – of the ways in which racist practice continues to permeate political life. An especially effective passage in the film is where it cuts back and forth between scenes of aggression at a 2016 Trump campaign rally – stoked by the future president himself – and scenes from the 1950s of violence inflicted by police and vigilantes against Black people.

The whole history persuasively frames the present-day embodiment of the U.S.’s “peculiar institution,” namely mass incarceration, which entombs one in three Black men at some point in their lives.[3] Ironically, however, what the film does not take up at all is the literal perpetuation of slavery in today’s prison system. In fact, the demand to repeal the 13th Amendment’s “exception clause” – to amend the amendment – is at the core of a current nationwide movement of prisoners against being forced to work for next to nothing or, in the case of Texas, nothing at all.[4]

Also not highlighted in the film is the systematic application of surplus punishment, including physical abuse, medical neglect and psychological torture. Although we are shown the horrendous treatment of Kalief Browder – a youth who was falsely charged and never tried – on NYC’s Rikers Island, we are not told about the nationwide web of “supermax” facilities or about the widespread use of sensory deprivation and prolonged solitary confinement. We shall come back to this.

The single word that summarizes the film’s narrative is criminalization. Criminalization serves to confer legitimacy on all the inequities and indignities that the system perpetrates on people of color. The practices are then rationalized as being aimed not against a particular ethnicity but rather against a category of persons – implicitly unworthy – who have rejected the norms of civilized society. The suffering endured by such “criminals” is presumed to flow directly from their own misdeeds and therefore not to merit any concern on the part of “law-abiding” citizens.

The stereotyping of prisoners as criminals – or “offenders,” in the official lingo – makes it possible for many of us to unthinkingly accept the preposterous idea that, within the space of a generation, there could have occurred a sudden quintupling of an identifiable character-type within a given society – to wit, a surge of “criminals” in the United States that suddenly arose starting in the mid-1970s. In fact, the ballooning of the U.S. prison population reflects key measures taken by the government to address a systemic crisis.

Political protest was at a peak in 1969 when Richard Nixon became president. The Black Panther Party (BPP) was rapidly expanding, and was tagged by the FBI as the “greatest threat to national security.” Eager to suppress the Black revolt but no longer able to target people on the basis of “race,” Nixon instead invoked the specter of crime.

State agencies, acting either directly or through surrogates, could assassinate the most inspirational Black leaders – Malcolm X, Martin Luther King Jr. and Chicago BPP leader Fred Hampton – and could frame and lock up many others, but this was not enough to assure pacification of their popular base. Here is where the “war on drugs” came in. It subjected street transactions to the same level of surveillance and manipulation as had previously been deployed against revolutionary organizations like the BPP.[5]

Legislation passed under Presidents Reagan, Bush I and Clinton lengthened sentences for even minor drug-related offenses and also made it harder for criminal defendants to appeal from state to federal courts. At the same time, the lure of the illegal drug trade was augmented as neoliberal economic policies – including corporate globalization, deindustrialization and the attack on welfare – cut into working-class job opportunities and incomes. From the standpoint of capital’s need for a labor force, there were more hands available than necessary. Welfare had to be undercut because it made the unemployed less vulnerable.

With well-paying jobs gone, with welfare gutted and with the resultant volatile populations, a higher level of control was seen as necessary. Hence the disproportionate presence of police in poor neighborhoods, especially those whose inhabitants share a common culture and therefore a potential for effective resistance. Hence also the over-representation of those communities in the prisons, whose primary function is to warehouse what from a capitalist perspective is surplus population.

In this general structure of control, prisons stand at the apex. The “offender” label is thrown into question, however, by the overwhelming preponderance of plea-bargaining – as opposed to conviction at trial – in determining prison sentences. Bronx Democrat Charles Rangel, interviewed in “13th,” says that plea bargains determine the outcome in 97 percent of criminal cases. This refers to the federal level, but state practices run in the same range.[6]

Yet even a relatively short prison term amounts to many more years of punishment. This is because of laws – or policies of private corporate entities – that are unrelated to the legal sentence for a given offense. Ex-prisoners are thus subject to being denied employment opportunities, student loans, food stamps, access to public housing and, crucially, the right to vote. Many of these hardships vary by state or locality, but the disenfranchisement is estimated to extend nationally to about 6 million potential voters, overwhelmingly people of color.

This aspect of surplus punishment is noted in “13th.” Another aspect that should not be forgotten is the impact on prisoners’ households, whose members are also punished both materially and psychologically by the incarceration of their loved ones. But the most glaring expression of surplus punishment is the abuse of the prisoners themselves. Of course, the incidence and the severity of such abuse varies by state, by institution and with immediate contingencies. But there is an enabling ideology and a corresponding staff culture which gives rise to common and widespread practices.

There is moreover a continuum between these practices and the harder-to-conceal practices of the police, operating in neighborhoods whose populations they seek to keep in line. Guards and police are alike in functioning as occupation forces and have no accountability to those whose lives they oversee. Where stop-and-frisk laws are in effect, police have the same arbitrary power as prison guards. But even without such laws, there are countless petty rules that can serve as pretexts for detaining someone, and once the detention has been made, the cop is in control, and for a person of color to challenge that control is to run a mortal risk.[7]

The point here is that the very mindset that gives police the license to kill gratuitously – i.e., even when they are clearly in no danger – also tells prison officials that they are entitled to inflict both physical and psychological torture on the people in their custody. At the higher levels of power, this is rationalized in terms of what is allegedly required for the sake of maintaining order; at the lower levels of implementation, i.e., in the conduct of prison guards, it takes the more direct form of finding satisfaction in subjugating those over whom they have been given total control.[8]

Accounts of such behavior occasionally penetrate media indifference, as in the case of a mentally ill prisoner in Florida who in 2012 was scalded to death – locked for two hours in a steaming shower by guards who then ignored his cries.[9] Cases of beatings, of deliberate medical neglect and of destruction of prisoners’ property – in various states – are too numerous to itemize.[10] Equally widespread is the practice of long-term solitary confinement, imposed especially on organizers. Forty-four states have supermax prisons, in which solitary confinement is the norm.[11]

New repressive practices are continuously introduced. Although they are not all equally severe, they point in a consistent direction. In one New York State prison, an additional wall was put up a few years ago, just outside the window of the visiting room, exclusively in order to block one’s view of the hills in the distance. In Virginia, the visiting system was recently reorganized so that you are no longer put on a visiting list by each prisoner you might visit, but you instead have to apply for visiting status on the system-wide website, which, except in the case of family-members, only allows you to visit one prisoner in the state.

In many local jails, it is now becoming common to allow visits only via video – an arrangement that institutions find attractive because it saves staff time while also providing, like the notorious prison-phone system, an opportunity to extort payment from visitors – most of whom, like their brothers and sisters behind the walls, come from poverty.[12] Common to all such steps is the further isolation of prisoners from normal life, whether in the form of contact with family and friends or in the form simply of visual variety in one’s surroundings.

While the topic of mass incarceration is ably introduced by “13th,” we begin to see the full impact of the phenomenon only when we recognize that the people it ensnares are not just locked up for a certain period of time; they are continuously subjected to additional punishment, which not only makes their confinement more painful, but also extends itself, for those who are fortunate enough to be released, far into the rest of their lives.

Behind this whole constellation of practices lies a self-perpetuating culture of mistrust. The culture in question is not, of course, embraced by everyone, but it is reinforced at the highest levels. It is integrally tied to the extreme social inequality that has arisen in the U.S. And it is expressed on the global stage by the argument that in order for “us” – a deliberately unspecified entity – to be secure in the world, “we” must have a bigger arsenal of weapons than all the other military powers combined. This perversion of the concept of security – lumping popular needs with capitalist interests – appears consistently whether we’re examining the worldwide network of U.S. military bases or the domestic mechanisms through which the potentially most rebellious sectors of the population are kept under control.

The priority given to exercising control reflects an underlying antagonism of interests. The overgrowth of the U.S. penal system, in turn, reflects the failure of the country’s political structures to restrain even the most draconian of ruling-class impositions. The resulting prison climate of suspicion, tension and periodic outbursts should be assessed in the light of an alternative model.

The segment on Norwegian prisons in Michael Moore’s 2015 documentary, “Where to Invade Next,” offers both the evidence and the argument for an approach which says that confinement is punishment enough, and that beyond that, the focus should be on rehabilitation. To anyone who thinks that this approach is unrealistic, the only possible reply is: This shows how deeply the culture of domination has entrenched itself in our society.

[1] She says this to Oprah Winfrey in an interview that accompanies the film.

[2] The racial dimension of voter-suppression is expertly illuminated by journalist Greg Palast. See his 2016 book and DVD, “The Best Democracy Money Can Buy,” http://www.gregpalast.com/.

[3] Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System, August 2013, http://sentencingproject.org/wp-content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf, p. 1.

[4] See Alice Speri, “The Largest Prison Strike in U.S. History Enters Its Second Week,” https://theintercept.com/2016/09/16/the-largest-prison-strike-in-u-s-history-enters-its-second-week/. Abolition of prison slavery is a central demand of the “millions4prisoners” march planned for Aug. 19, 2017.

[5] Michelle Alexander, who is extensively interviewed in “13th,” describes how Nixon hatched the war on drugs, in “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” (New York: New Press, 2012), pp. 40ff. The political agenda underlying the drug war is discussed in Mumia Abu-Jamal and Johanna Fernández, eds., “The Roots of Mass Incarceration: Locking up Black Dissidents and Punishing the Poor,” special issue of Socialism and Democracy (November 2014), http://sdonline.org/back-issues/#66.

[6] Jed S. Rakoff, “Why Innocent People Plead Guilty,” New York Review of Books, Nov. 20, 2014, http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/.

[7] Steve Martinot, “Probing the Epidemic of Police Murders,” Socialism and Democracy (March 2013), http://sdonline.org/back-issues/#61/.

[8] See Kevin “Rashid” Johnson, “The Abuse Goes On: The Corrupting Dynamics of Power in a Texas Prison” (2017), http://rashidmod.com/?p=2374. Regarding the assumption that extreme methods must be used to maintain order, see the extraordinary memoir by Jamie Bissonette et al., “When the Prisoners Ran Walpole” (Cambridge, MA: South End Press, 2008).

[9] Report in Miami Herald, June 25, 2014, http://www.miamiherald.com/news/local/community/miami-dade/article1972693.html. An official investigation concluded in 2017 that no charges should be brought against the responsible officers, https://diy.rootsaction.org/petitions/darren-rainey-was-tortured-and-killed-by-prison-guards-at-dade-correctional-institution-in-florida.

[10] For reports by Kevin “Rashid” Johnson, see http://rashidmod.com/?page_id=166. For reports by Keith “Malik” Washington, a leader of the anti-slavery drive, see http://sfbayview.com/?s=keith+malik+washington.

[11] Albert Woodfox, recently released from Angola Prison in Louisiana, was held in solitary for 43-plus years. Kevin “Rashid” Johnson has been in solitary, in three different state systems, for most of his 25-plus years of incarceration. For a brief overview of the practice, which routinely victimizes over 80,000 prisoners in the U.S., see http://solitarywatch.com/facts/faq/.

[12] National Public Radio report (2016), http://www.npr.org/2016/12/05/504458311/video-calls-replace-in-person-visits-in-some-jails.

Victor Wallis is the managing editor of Socialism and Democracy (http://sdonline.org). He teaches political science and is the author of many articles on ecology and Left politics. He can be reached at 411A Highland Ave. #321, Somerville MA 02144 or zendive@aol.com. This article will appear later this year, with minor revisions, in the online media journal Jump Cut (http://ejumpcut.org/).