Unfortunate untruths about overcriminalization

Nearly two years ago I decided to focus much of my research on the intersection of theological ethics and criminal justice reform. I read thousands of pages of history and data before I felt remotely credible enough to speak or write about these issues publicly. I also started teaching a course on criminal justice reform in order to concentrate on the subject even more. As I wrote earlier this year, Christians need to do their homework on complex issues in order to make the best contributions to human flourishing. Emotion, passion, and good intentions are not enough, which is why I was disappointed by The Gospel Coalition’s review of the film 13th.

This provocative and powerful Netflix documentary directed by Ava DuVernay retells the story of America’s criminal justice crisis through the lens of race and the passing of the Constitution’s 13th Amendment, which outlawed slavery except in cases where someone was convicted of a crime. The film argues that today’s “mass incarceration” crisis is an extension of the intersection old Jim Crow laws and a covert application of the 13th Amendment. This “New Jim Crow” thesis has captured the imagination of Americans, including evangelicals, about the causes and solutions to much-needed criminal justice reform.

Rasool Berry does an excellent job of summarizing the key points of the documentary in his review, so I won’t repeat them here, but he neglected to include a critical evaluation and testing of the film’s prevailing narrative. A number of legal scholars have proved that the New Jim Crow thesis is historically and factually flawed, and if the wrong account of our nation’s criminal justice mess is mainstreamed, proposed solutions will miss the mark and we will fail to bring about long-term, effective change.

It’s a fact that America’s overcriminalization problem transcends race and class.

When watching a documentary like 13th, we should ask if it properly represent the facts? In this case, it’s a fact that America’s overcriminalization problem transcends race and class. Historically speaking, since the nation’s founding, American elites have routinely used the criminal justice system as a social means of controlling the lower classes of all races, including Native Americans, blacks, and whites (referring to them as “white trash”).

The data tell us that the prison explosion of the 1970s that led to today’s 2.5 million inmates resulted from government overcriminalizing non-violent offenses, the kind we used to address using moral, social, and civil society institutions. Sadly, 13th obscures the fact that America’s prison explosion resulted from a surge in violent and property crime, increases in incarcerating lower class blacks and whites, the proliferation of rogue prosecutors, a rise in misdemeanors becoming felonies, and the stigmatyping juvenile misbehavior as criminal.

Mass media outlets poured gasoline on the fire by underreporting white criminal behavior while overreporting black urban crime and ignoring rural and urban metropolitan police brutality. Today, police lock up almost anyone who is viewed as deplorable, especially lower class men and women of color, and those we believe have broken any aspect of the social contract.

In the end, I disagree with Berry’s conclusion: 13th does not “advance an inconvenient truth.” The film advances unfortunate untruths that undermine any good points raised in the film. These flaws should encourage us to do more homework before offering prescriptions for solutions. Overcriminalization is greater than race and certainly much greater than reducing arguments about our current incarceration crisis to the 13th Amendment, slavery, and the War on Drugs.