Capturing the Flag. Directed by Anne de Mare. Oley, PA: Bullfrog Films, 2018. 76 minutes.

13th. Directed by Ava DuVernay. Los Gatos, CA: Netflix, 2016. 100 minutes.

Rights and Racism in US Law and Policy

13th and Capturing the Flag explore the policies and systems that sustain, replicate, and recreate racial social control in the United States. 13th chronicles the rise of mass incarceration or, more broadly, the US carceral state. Capturing the Flag recounts three volunteers’ efforts during the 2016 presidential election to protect the right to vote. Capturing the Flag also demonstrates some of the ways people fight against the policies that restrict this right.

13th takes the viewer through one hundred and fifty years of history, starting with emancipation but focusing mainly on the period between 1970 and 2015. DuVernay is loyal to Michelle Alexander’s narrative in The New Jim Crow (2010), which argues that mass incarceration emerged in the wake of the civil rights movement from lawmakers’ political strategies to gain favor with white voters and is sustained by laws that give resources and free rein to law enforcement agencies, particularly when policing poor Black communities. 13th is narrated by a large group of commentators and includes affecting footage of lynching, civil rights movement protests, politicians’ speeches, and recent police murders of unarmed Black men and women. These make for compelling visuals and powerful narrative, but also have the potential to overwhelm its audience.

The film covers many topics that swirl around mass incarceration, from ideas about the “criminal black man” (Russell-Brown 2021; Muhammed 2011) to the role of fear in politics, private for-profit interests, and harsh sentencing policies, yet it leaves out stories of Black women and incarceration (Richie 2012). As many other reviews have pointed out, it shouldn’t be taken as the authoritative account of mass incarceration (Berger 2016). It may be best to have students watch the documentary in segments along with readings that challenge Alexander’s thesis and offer a different perspective on the role of crime (Miller 2016), racism (Forman 2017), sentencing laws (Pfaff 2017), or private corporations (Genovese 2020).

In contrast to 13th, Capturing the Flag moves slowly through a very specific story of three volunteers from New York City during the 2016 election who travel to North Carolina where local election officials had been purging people from the voting rolls. In 2013 the Supreme Court struck down a crucial provision of the 1965 Voting Rights Act that required counties with a history of Black voter suppression to get approval for any changes to the voting process from the Department of Justice.1 By 2016, over a dozen states had new laws in place that limited access to the ballot (“How Shelby County” n.d.). In the film, each volunteer works as a poll watcher on election day at different North Carolina precincts. They talk with mostly grateful and some frustrated voters who report that election officials asked them to show identification cards, told them to go to a different voting location, or insisted they fill out a provisional ballot (many of which would never be counted).

The film highlights that we should not take democracy for granted. As in the story told in 13th, Capturing the Flag conveys that for Black Americans, rights must be constantly won and maintained. Along with histories of the civil rights movement and the Voting Rights Act, the film could be paired with readings on the “myth of rights” in the United States for a discussion about the possibilities and limits of rights (Scheingold 2004). I did question why director Anne de Mare chose to follow New Yorkers going south, rather than North Carolinians working on their own behalf. Students might be thus prompted to discuss how this compares to the hundreds of white college students, religious leaders, and others who went to the South in the 1960s to advocate and agitate for voters’ rights. Finally, although the protagonists of the film emphasize that their goal is that people vote whereas who they vote for does not matter, the film’s only perspective is through the lens of Democratic Party members who did not want to see Donald Trump elected.

In their portrayal of ongoing dynamics of resistance, rights, and rollback in US history, 13th and Capturing the Flag highlight the US Supreme Court’s embrace of a pernicious colorblindness that cuts off two paths toward full rights for people of color in this country: we cannot remedy racial injustice through the courts unless we have clear evidence of intent to discriminate, while at the same time the Supreme Court has barred us from taking race into account in our attempts to remedy racial injustice outside of court.2 It is thus even more crucial that students understand and contend with the historical and contemporary iterations of racism in the United States.

1 See Shelby County, AL v. Holder, 570 US 529 (2013).

2 See McCleskey v. Kemp, 481 US 279 (1987); Students for Fair Admissions v. Harvard, 600 US 181 (2023).

Heather Schoenfeld is an associate professor of sociology at Boston University. She is the author of the award-winning book Building the Prison State: Race and the Politics of Mass Incarceration (University of Chicago Press, 2018). Schoenfeld’s articles and essays on historical and contemporary systems of criminal punishment are published in a wide variety of top journals, including most recently Law & Social Inquiry and Law & Policy. Her book and a 2014 American Journal of Sociology article (with Michael Campbell) on the federal and state political processes that produced mass incarceration are considered essential accounts of the rise of the carceral state.