The Badges and Incidents of Criminality

The United States Constitution guarantees all citizens the same basic rights and privileges; however, citizens with criminal convictions are subject to a number of regulatory restrictions on fundamental rights (such as disenfranchisement, ineligibility for public housing and benefits, employment discrimination, etc.) regardless of the seriousness of the offense. These restrictions are called collateral consequences, and they effectively relegate citizens with criminal convictions to a state of second-class citizenship. The U.S. Supreme Court has published several opinions construing Section 2 of the Thirteenth Amendment, also known as the Enabling Clause, as not only abolishing slavery but also empowering Congress to eradicate all badges and incidents of slavery. However, the U.S. Supreme Court has provided little guidance on what constitutes the badges and incidents of slavery, and Congress has scarcely used its authority under the Enabling Clause. The countless collateral consequences that follow criminal convictions are many of the same “badges and incidents of slavery” imposed on slaves during the institution of slavery, and Congress has the authority to eradicate them via the Enabling Clause.This Comment urges Congress to eliminate all collateral consequences that follow criminal convictions and puts forth a three-part analysis to aid courts in identifying modern badges and incidents of slavery