The Probative Value of Skin Color: How Rule 609’s Impeachment by Prior Conviction Violates the Thirteenth Amendment

Introduction

Raymond Joseph and his girlfriend walked toward his brand-new Charger. They entered the car, Raymond started it, turned up the radio, rolled down the windows, and opened the sunroof. Before pulling off, she reached for her cell phone, realizing it was left with her purse inside. She told Raymond. They quickly exited the car and began walking back toward his aunt’s house. She walked inside. While at the top of the stairs, taking in the moment, Raymond noticed two men walking up the sidewalk in his direction. Within seconds, the men jumped in his car and drove away. The incident occurred quickly. Raymond could not intervene.

Around 12:30 a.m., two days later, the police scanner alerted Prince George’s County^[1] officers as the Charger passed them. Officers turned on their sirens. The driver accelerated, and a high-speed chase ensued. Eventually, the car crashed, and two suspects ran. Officers saw one suspect exit from the driver’s door and the other from the passenger’s side. Officers gave chase. A block away, officers apprehended Fred Warren,^[2] my former client, hiding under a car. An hour later, officers placed a second suspect—suffering from injuries consistent with a car accident—under arrest at a nearby hospital.

For his part, Fred admitted to running from the Charger after the crash. Yet, he denied involvement in the taking of Raymond Joseph’s car. Being a young Black man, with limited educational attainment, inner city demeanor and vernacular, prior criminal contacts, and the inability to credibly articulate his version of the story, he believed that exercising his constitutional right to remain silent under the Fifth Amendment was his best and maybe only option to reclaim freedom.^[3] With this exercise of right—a right intended to prevent compelled testimony—the prosecutor’s version of the incident was all the jury would hear.^[4]

Fred’s story occurs in criminal courts every day. One study revealed that defendants with a record were twenty-five percent less likely to testify than those without a record.^[5] Of defendants who do testify, they are more likely to be found guilty when evidence of a record is admitted in their trial.^[6] Predictably, “most defendants who stand trial have a criminal record that predates the charged crime.”^[7] This bleak reality causes innocent defendants to refrain from testifying,^[8] and it is understood by prosecutors, judges, public defenders, and criminal defendants across the nation. Unsurprisingly, “a defendant who remains silent at trial suffers about the same damage to his acquittal prospects as a defendant who testifies and is ‘impeached’ with a prior conviction.”^[9] Thus, fear of impeachment by prior conviction is just as harmful to criminal defendants as actual impeachment.

While this exercise of right under the Fifth Amendment—to avoid compelled testimony—is technically within the criminal defendant’s purview,^[10] what necessitates the sheer need to remain silent is tied to an age-old practice of silencing criminal defendants, the formerly convicted, and the descendants of enslaved Africans. Although various factors limited one’s ability to testify during the first century of this republic,^[11] the history of testimony concerning the descendants of the enslaved is deeply rooted in the American caste system—specifically, chattel slavery and its badges and incidents.^[12] With the end of the Civil War and the passage of the Thirteenth and Fourteenth Amendments, at least in principle, the first ten amendments to the Constitution became applicable to the descendants of the enslaved through the Due Process Clause.^[13] As a result, the right against compelled testimony and the understood right to testify contemporaneously applied.^[14] By way of the Due Process Clause of the Fourteenth Amendment of the United States Constitution, Fred Warren and his ancestral line were included within the powers of individual rights bestowed upon all citizens. Any legitimate race-based limitations on those rights were struck down with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments.^[15]

In the 160 years since the passage of the Civil Rights Amendments, overt racist expression has gone out of fashion in the criminal legal system.^[16] Perpetrators of racist ideology have artfully rebranded their rhetoric to appear objective while placing the blame for structural inequities upon the choices of the exploited.^[17] Court rules that were once explicitly anti-Black have been eliminated over time.^[18] However, many of these rules have been replaced with facially neutral policies that serve to tip the scales against Black criminal defendants and perpetuate a race-based system of mass incarceration that unequally punishes the descendants of enslaved Africans.^[19] Such is the case with Rule 609 of the Federal Rules of Evidence, which allows juries to learn of a defendant’s prior conviction if the defendant takes the stand to testify at their own trial.^[20] Adopted after defendants gained the right to testify on their own behalf, Rule 609 effectively prevents criminal defendants—many of whom are Black and have been saddled with prior criminal convictions due to discriminatory policies and policing—from exercising their right to testify.^[21] As such, Rule 609 provides a facially neutral means of continuing the slavery-era notion that Black people are inherently untrustworthy and incompetent, and should be disavowed from testifying in criminal court. Rule 609 increases the likelihood of a criminal conviction even in the absence of proof beyond a reasonable doubt^[22] of the crime charged.^[23]

The Federal Rules of Evidence are used as a model in most states across the country.^[24] It provides a framework to determine what evidence may or may not be used by a jury during a trial.^[25] The rules are “to administer every proceeding fairly . . . and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”^[26] Rule 404(b) states that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”^[27] In other words, a jury should focus on the evidence of the crime the defendant is presently charged with, rather than other prior bad acts that the defendant may have committed.^[28] This normally means, that during a criminal trial, a jury cannot hear that the criminal defendant was previously convicted of other crimes.^[29] This protects against the likelihood that a jury, once hearing that an individual is already a convicted criminal, will not fairly judge the defendant in the present case and not hold the state to its burden of proving guilt beyond a reasonable doubt.^[30] Rule 609 discourages Black defendants from testifying and effectively maintains a slavery-era practice against Black people testifying in a court of law.^[31]

Such was the case in the criminal trial of Fred Warren. The prosecutor understood that Fred was a Black man with prior criminal contacts, limited education, and financial resources, so the likelihood of him testifying was slim to none. As a result, the prosecutor created a false narrative based on a two-part belief that Fred Warren would not testify. She understood the criminal legal system as a weapon^[32] of mass incarceration designed to maintain the objectives of chattel slavery.^[33] She understood mechanisms of control that ensure criminal defendants like Fred Warren are treated as mere widgets and pushed through the system.^[34]

First, the prosecutor crafted a story to support her narrative that Fred Warren was the driver of the stolen Charger, even though the officers—who initiated the chase and saw the occupants exit the vehicle—wrote in multiple police reports that Fred exited from the passenger side of the car. To support her fabrication, she did not call the multiple officers who wrote police reports indicating that Fred was the passenger. Additionally, because forensic evidence was undeniable,^[35] she chose not to argue that the co-defendant was the driver, even though he was charged as the driver at the time of arrest. Nor did she address Raymond Joseph’s identification of the co-defendant, where his cell phone records undoubtably supported his claim that he was not near the location where the car was taken or the area where the chase and crash occurred.^[36] He simply was uninvolved in the whole of the incident.

Secondly, the prosecutor did not introduce Fred Warren’s statements into evidence. During the recorded interrogation, in his Mirandized statement,^[37] officers acknowledged that Fred did not fit the description of the driver, or the passenger involved. Fred was only 5’3”, weighed 240 pounds, had dark skin, and a full beard—contrary to Raymond Joseph’s initial description of the carjackers.

The most revealing part of the prosecutor’s fabrication was her reliance on Fred Warren’s presumed silence. Of this, she was certain—even though Fred had answered the officers’ questions and his consistent statements strongly supported that he was neither the carjacker nor the driver. She confidently believed that her fabricated version of the facts would not be controverted because Fred would not testify.^[38] She knew only Fred Warren could testify that he had been waiting at a bus stop for over an hour when a neighborhood acquaintance offered him a ride, and, after learning buses did not run on Sundays, he got into the Charger. She knew only Fred could testify that he did not realize it was Sunday and that he had no job, nowhere to be, and very little reason to track the days. She knew only Fred could explain why he got into the Charger with a person from his neighborhood whom he did not know and how it was possible to know a person’s face from the neighborhood while contemporaneously not knowing that person’s name.^[39] Only Fred could explain, but because of his criminal contacts, the outlandishness of his story, and his essence as an inner-city Black male, the prosecutor understood that Fred would relinquish his rights under the Sixth Amendment and choose not to testify.^[40] And if he did, based on the badge of his blackness and the incident of slavery that limited Black people from testifying since the time of chattel slavery, he would not be believed. The prosecutor knew, as did the drafters of Rule 609, that Fred Warren—like his ancestors who could not testify—would not testify, and if he did, he would not be believed.

A Black woman prosecutor, before a Black judge, in a Black county, with a Black victim, a Black jury, a Black criminal defense attorney, and a Black defendant, perpetuated white supremacy by way of Rule 609. Rule 609 violates Section Two of the Thirteenth Amendment as an incident of slavery by restricting Black people’s—specifically Fred Warren’s—ability to testify, and as a badge of slavery by degrading black skin, including that of Fred and all other descendants of the formerly enslaved, as unfit to testify and undeserving of credibility.

The Thirteenth Amendment, ratified in 1865, abolished slavery and involuntary servitude in the United States, except for those duly convicted of a crime.^[41] While slavery is normatively understood as involuntary servitude, its historical conception comprised far more than mere chattel slavery.^[42] “Slavery” extended far beyond our modern conception, encompassing social oppression, peonage, and various forms of economic exploitation.^[43] To give this broad promise effect, the Amendment’s second section grants Congress the power to enforce the first prohibition through appropriate legislation.^[44] In the Civil Rights Cases, the Supreme Court interpreted that broad language to grant Congress authority to eliminate the “badges and incidents of slavery.”^[45] This phrase refers to the lingering effects and symbols of slavery that continue to oppress and disadvantage Black people long after the formal institution of [chattel] slavery was abolished.^[46]

“Badges and incidents of slavery” encompasses laws, policies, and practices that perpetuate the subordinate status of Black people or deprive them of civil rights enjoyed by other citizens.^[47] This concept has been invoked to challenge racial discrimination and inequality, with some scholars advocating a broad interpretation to address modern injustices rooted in slavery’s legacy.^[48]

The primary architect of Rule 609 was Senator John Little McClellan. He was a segregationist from Arkansas who opposed civil rights legislation and supported de facto relegating Black people back to an enslaved status.^[49] McClellan’s involvement in the crafting of Rule 609 tracks historically with his underlying motivations in perpetuating racial inequalities in the criminal legal system overall. The rule’s disparate impact on Black defendants,^[50] combined with its historical origins, functions as a modern “badge of slavery,”^[51] where more Black people are convicted and sentenced to prison at higher rates and for longer terms, often subjected to forced labor in prisons, thereby ensuring that slavery lives on.^[52]

This Article posits that Rule 609, by creating a major obstacle for Black criminal defendants to testify in their own defense, is an incident of slavery, while prior criminal convictions are badges of slavery. The Advisory Committee on Evidence Rules should recommend abolishing Rule 609 and prohibiting the use of past criminal convictions for impeachment through cross-examination. Failing that, Congress should reclaim its authority and fulfill its constitutional responsibility to overturn the rule. If Congress does not act, state legislatures should amend their own versions of the rule, consistent with their obligations under the Supremacy Clause. And if none of these bodies act, the Supreme Court should strike down the rule as unconstitutional, as it effectively reinstates badges and incidents of slavery. While others have advocated for the elimination of Rule 609,^[53] this is the first article to argue that Rule 609 violates the Thirteenth Amendment, including Section Two, where Congress abdicates its duty to eradicate the historical limitation on Black testimony.

The Article will proceed in four Parts. In Part I, the Article explores the evolution of Black testimonial exclusion, beginning with the legal prohibitions against enslaved people testifying against white people. It then examines the post-Reconstruction-era, highlighting how Jim Crow laws and judicial decisions continued to limit Black testimonial power and maintain racial hierarchy. Finally, it details the creation of Rule 609, analyzing its legislative history, including the role of segregationist John Little McClellan, and its connection to mass incarceration and punitive sentencing.

Part II presents the legal argument that Rule 609 constitutes a badge and incident of slavery under the Thirteenth Amendment. It begins by discussing the broad objectives of the first section of the Thirteenth Amendment. Specifically, the Founding-era generation and the drafters of the Thirteenth Amendment understood “slavery” to extend beyond “chattel slavery” and encompass other forms of subjugation. Next, the concept of badges and incidents of slavery as interpreted by legal scholars and the Supreme Court will be defined. The discussion then applies this framework to Rule 609, demonstrating its historical continuity with slavery-era testimonial exclusions and its disproportionate effect on Black defendants. Finally, it anticipates and refutes potential counterarguments, including claims that Rule 609 is facially neutral.

Part III incorporates empirical and social science evidence to support the abolition of Rule 609. It examines psychological studies on jury bias, illustrating how jurors conflate prior convictions with present guilt, as well as statistical data showing that Black defendants are disproportionately impacted by Rule 609 due to systemic disparities in criminal convictions and policing.

Part IV submits a proposal that rebukes the widely accepted justification for the use of prior convictions, dismantles the balancing test employed by judges, completely invalidates Rule 609, and abolishes the use of prior convictions in criminal trials. Model legislation, like that of Montana—the only jurisdiction in the United States that does not use prior convictions in criminal trials—will be offered in draft form, based on the authority of the Thirteenth Amendment. The first subsection discusses legislative and judicial approaches, advocating for Congress to repeal Rule 609 under its Thirteenth Amendment enforcement power, drawing inspiration from Montana’s evidentiary framework. The second section explores alternative legal strategies, including constitutional challenges under the Thirteenth Amendment, and non-reformist reforms to restrict the rule’s scope.

Finally, the Article concludes by reaffirming that Rule 609 perpetuates the racialized testimonial exclusion that originated under slavery. It calls for immediate legislative and judicial action to abolish the rule and ensure that Black defendants can fully exercise their right to testify in criminal trials. By examining the historical context, the development of Rule 609, and its current effects, this Article seeks to demonstrate how this seemingly neutral evidentiary rule continues to uphold systems of racial subordination rooted in the institution of slavery.

I. Historical Context: The Evolution of Black Testimonial Exclusion

The systematic exclusion of Black testimony has deep historical roots. Such exclusion originated in Slave Codes and continued through post-Reconstruction Jim Crow Black Codes and modern evidentiary rules like Rule 609.^[54] This section traces the history of Black testimonial exclusion—from its use as a tool of racial subjugation during slavery, to its legal entrenchment under Jim Crow, to its modern codification through Rule 609.

Specifically, it discusses the right to testify in the emancipation-era, the formation of the right to testify for criminal defendants, convicts, and Blacks, the creation of Rule 609, the segregationist intention of the chief drafter, and the impact of prior convictions in silencing Black criminal defendants. John Little McClellan and slavery sympathizers like him will be exposed, and their facially neutral justification for limiting the testimonial right of Black criminal defendants will be invalidated. Emphasizing the history of testimonial exclusion exposes Rule 609 as a modern badge of slavery, one that perpetuates racial subordination within the criminal legal system.

A. Slavery and the Denial of Testimonial Competency

During chattel slavery, enslaved persons were legally prohibited from testifying against white people, reinforcing their legal subservience and enabling unchecked racial violence. Even after emancipation, the presumption that Black testimony was inherently unreliable persisted, ensuring that Black people remained disadvantaged in courtrooms.^[55] This subsection examines the legal prohibitions that barred Black people, both enslaved and free, from testifying, and the broader racial ideology that deemed their testimony inherently untrustworthy.

Before the Civil War, the right to testify for free Blacks and the enslaved was completely denied or seriously constrained.^[56] Non-Black criminal defendants, unwarrantedly, were also limited in their ability to testify.^[57] Under the Slave Codes—in any legal proceeding—enslaved people were explicitly barred from testifying against white people.^[58] For example, the South Carolina Slave Code of 1740 prohibited an enslaved person from giving testimony unless the testimony would serve to incriminate another enslaved person.^[59] This prohibition was a fundamental weapon of white supremacy, allowing white people to commit crimes against enslaved people with impunity.^[60] The denial of Black voice enabled white power.^[61] Moreover, the law ensured that any crime committed by an enslaved person would be punished, even where the only witness against the defendant was an enslaved person. However, if the defendant was white, the enslaved person could not testify. By keeping Black voices out of the courtroom, white benefactors could maintain economic control without legitimate challenge in court.^[62] In 1847, the South Carolina Court of Appeals held that those with “blood mixed, in any degree, with that of the African race, called in our Acts, ‘negroes, mulattoes and mestizoes[,]’ . . . are incompetent witnesses, and come under the disabilities of the Act of 1740.”^[63]

Even free Black people were frequently subject to testimonial exclusion, particularly in the South, where legal statutes and judicial rulings treated them as inherently unreliable witnesses. The purported reasoning behind these laws was rooted in the racist ideology that Black people lacked the moral and intellectual capacity to provide credible testimony while white economic and social exploitation greatly benefited. This belief system extended beyond the legal system into broader society, where Black voices were systematically discredited and disregarded.

On April 1, 1807, Ohio passed a law barring Blacks from testifying in any case, civil or criminal, if one of the parties was white.^[64] In 1847, the Virginia Supreme Court held that nobody with more than “one-quarter of negro blood could testify against a white person.”^[65] These restrictions were not just legal technicalities—they were mechanisms of racial control that upheld the total dehumanization of Black people, free or enslaved.

In 1859, the Alabama Supreme Court in Dupree v. State affirmed the exclusion of a free Black person’s testimony, holding “that there must be one white ancestor, of each generation, for three generations, before a competency to testify can be established; and the proposed witnesses, being of the third generation, were incompetent to testify, and there was no error in rejecting them as witnesses.”^[66] That same year, the court relied on the Dupree ruling in deciding against the competency of a witness who was a county constable “of mixed blood” attempting to serve a peace-warrant on the defendant, who resisted arrest.^[67]

In 1861, a Black barbershop owner in San Francisco, George Gordon, was shot and killed by a white man, Robert Schell.^[68] Several Black people were witnesses to the murder, but California law banned “[B]lack,” “mulatto,” and “Indian” people from testifying against whites in both criminal and civil cases.^[69] In that same murder trial, James Cowes, who identified as white, was also prevented from testifying.^[70] The defense attorney claimed Cowes was Black, and after a humiliating physical examination, he was deemed Black and prohibited from testifying.^[71]

In White v. Helmes, the Supreme Court of South Carolina unanimously affirmed that Eliza Helmes, a Black woman born free, was incompetent to testify.^[72] The court opined that there “is no instance in which a negro has been permitted to give evidence . . . nor indeed has this court ever recognized the propriety of admitting them in any case where the rights of white persons are concerned.”^[73] A few years later in Pilie v. Lalande, a “mulatto” witness was allowed to testify as her part-whiteness allowed for a prima facie assumption that she was free and competent to testify.^[74]

The practice of preventing Black people from testifying was widespread and codified in law in many states, particularly in the South. For example, Texas enacted a law that restricted Black people’s ability to testify as early as October 26, 1866, allowing Blacks to testify only in cases involving Black defendants or victims.^[75]

These practices embodied the badges and incidents of slavery, first codified through Slave Codes and later reinforced by Black Codes, serving as legal mechanisms to uphold racial subjugation and restrict the rights and freedoms of Black people even after emancipation. Following the Civil War and the passage of the Thirteenth and Fourteenth Amendments, legal barriers preventing Black people from testifying were gradually dismantled—but the underlying belief in Black testimonial unreliability endured. During Reconstruction, Southern states passed Black Codes that continued to restrict the legal rights of newly freed Black people, including their ability to testify in court cases involving white defendants.

The Sixth Amendment right to testify, as extended to the descendants of enslaved Africans through the Due Process Clause of the Fourteenth Amendment, must be understood within the broader context of the original meaning of the Sixth Amendment.^[76] The right to testify was not included in the language of the Sixth Amendment and would not become enshrined law for nearly another century.^[77]

Two scholars provide the legislative history underlying the right to testify. Their arguments track the evolution of the Sixth Amendment right to testify. Understanding the constitutionalizing of this right lays the foundation for grasping its later application to Black people following emancipation. First, George Fisher lays out how the right to testify generally was an exclusive right in which racial exclusion was embedded.^[78] Louis Holscher explains the history of the right to testify and the formation of the “demand” rule underlying the defendant’s right to testify.^[79]

In his study, Fisher outlines the right for defendants to testify in criminal cases and the right of Black people to testify as witnesses in any capacity. He asserts that both were widely established toward the end of the Civil War and during the Reconstruction-era.^[80] Fisher demonstrates that Northern states took a clear lead in granting the right to testify to Black people and to criminal defendants, with the South very reluctantly following behind.^[81]

Fisher highlights that during the 1860s, the inability of Blacks to testify in Southern courts became a major political issue: “Only the questions of [B]lack suffrage and of slavery itself generated more tension between North and South during the closing years of the Civil War and the first several years of the Reconstruction era.”^[82] Predictably, the North was significantly more willing than the South to grant the formerly enslaved the right to testify, and politicians saw this as tightly linked to emancipation generally. For example, Fisher notes that on two different bills proposing to free the enslaved in the District of Columbia, Massachusetts Senator Charles Sumner successfully added amendments allowing Blacks the right to testify in various capacities in courts of law.^[83]

Southern states were extremely reluctant to extend these same freedoms to the recently emancipated. During the 1860s, only four Southern states granted Blacks the same rights to testify in court as whites.^[84] In 1871, as outlined below, the Supreme Court declined to eradicate the incidents and consequences of slavery, when they did not extend the right to testify to Blacks in Blyew v. United States.^[85]

The right for criminal defendants to testify was granted almost simultaneously as the right of Blacks to testify. Fisher theorizes that this was due to states needing to follow their own stated principles and avoid accusations of hypocrisy.^[86] By allowing Blacks to testify, Northern states had rejected long-standing concepts of who was competent to testify in court.^[87] In doing so, they opened the door to the idea that other groups previously deemed incompetent to testify—including atheists, interested parties, felons, and criminal defendants—may have been unjustly silenced.^[88]

In addition, the timing of the granting of these two rights appear to indicate that there was great concern that once Blacks were given the right to testify, they would be able to testify against white people in court.^[89] This, too, likely encouraged the loosening of restrictions on who could testify—by allowing more groups of white people to testify, states reduced the chances of a court proceeding where a Black person could testify but a white person could not.^[90]

As demonstrated above, these laws were passed after 1864, supporting the idea that they were at least in part a response to Blacks receiving the right to testify.^[92]

B. The Right to Testify: Criminal Defendants

This subsection examines the Jim Crow-era laws and judicial decisions that continued to limit Black testimonial power, thereby reinforcing racial subjugation in the legal system. The Supreme Court considered the right of criminal defendants to testify during the Reconstruction-era in the United States. In McVeigh v. United States, an 1870 civil forfeiture case, the U.S. Supreme Court held that an owner of land must be given the opportunity to appear and be heard, even if the government claimed he was an enemy of the Union.^[93] McVeigh laid the foundation for procedural due process to be recognized in the right to testify for criminal defendants. Even so, the right of a criminal defendant to testify remained with individual state legislatures. It was not until 1987 that the Supreme Court heard the case of Rock v. Arkansas and declared a broad constitutional right for a criminal defendant to testify in his or her own defense—though by then this right had been established in all but one state.^[94] McVeigh affirms that every litigant must be heard. Rock constitutionalizes that principle in the criminal context, ensuring that the defendant—not just their lawyer—has the right to speak in their own defense.

In Rock, the prosecutor filed a motion to limit the defendant’s testimony significantly and the trial judge granted the motion.^[95] The defendant was convicted and appealed, arguing that her testimony was improperly limited.^[96] The court of appeals affirmed the trial court’s decision.^[97] The Supreme Court granted certiorari and stated unambiguously that “it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.”^[98] The Supreme Court emphasized that the right to testify on one’s own behalf at a criminal trial was a constitutional right that helped both to detect guilt and protect the innocent.^[99] The Supreme Court held that the right to testify was rooted in three constitutional amendments: (1) the Fourteenth Amendment guarantee of due process; (2) the Sixth Amendment’s compulsory process clause; and (3) the Fifth Amendment’s guarantee against compulsory self-incrimination.^[100] The Court in Rock further held that “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.”^[101]

The disproportionate restrictions that Rule 609 imposes on Black criminal defendants’ testimony are the ill that Rock prohibited, while McVeigh grounded its reasoning in due process of law, insisting that no person—enemy or otherwise—can be denied the opportunity to defend their interests in court. That broad procedural principle laid the groundwork for later application in criminal law, especially where individual autonomy and dignity were at stake, such as a defendant’s right to present their own voice at trial. Rock took the principle further, declaring that testifying is not just procedural, but personal and fundamental, protected by the Fifth, Sixth, and Fourteenth Amendments.

The same Fourteenth Amendment guarantee of due process, the Sixth Amendment’s compulsory process clause, and the Fifth Amendment’s guarantee against compulsory self-incrimination that Rock recognized for criminal defendants generally, apply directly to the descendants of the formerly enslaved to undo the effects of slavery in the United States.^[102]

C. The Right to Testify: Black Witnesses

One year after McVeigh, the Court heard Blyew v. United States, where two Black witnesses were denied the right to testify against two white defendants in an axe murder of a Black family in rural Kentucky.^[103] Despite the importance of the Black witnesses’ testimony, the Court failed to extend the right to testify to the Black witnesses. In dissent, Justice Bradley argued that the necessity of eradicating the “incidents and consequences of slavery” requires allowing testimony from non-defendant Black witnesses.^[104] Justice Bradley concluded:

It is unreasonable to suppose that the framers of this amendment, with this end in view, should have been content to give to these slaves only that small portion of freedom which the so-called free blacks had theretofore enjoyed. In this age no man can be called free who is denied the right to . . . give evidence in the courts . . . . So long as [a man] is denied the right to testify against those who violate his person or his property he has no protection, and is denied the power to defend his own freedom.^[105]

Despite Justice Bradley’s nuanced application of the Thirteenth Amendment’s import, the majority failed to extend the right to testify to Blacks. The Court lacked a sense of urgency, and ultimately deferred to “the power of Congress to pass the law.”^[106] Beyond failing to constitutionalize the right to testify to the descendants of the enslaved, the Court narrowed Section Three of the Civil Rights Act and denied federal jurisdiction where Kentucky law barred Black people from testifying.^[107] In response, Congress passed that law seven years later, after the rule of incompetency was revealed to be “unsound and resulted in the enactment of a general competency statute in 1878.”^[108] “[B]y the end of the second half of the 19th century, all States except Georgia had enacted statutes that declared criminal defendants competent to testify.”^[109]

While federal civil rights legislation formally abolished racialized testimonial exclusions, new evidentiary rules and procedural barriers emerged to serve the same function. Rule 609 of the Federal Rules of Evidence, for instance, silences Black criminal defendants disproportionately by allowing the introduction of prior convictions, reinforcing the historical presumption that Black testimony is inherently suspect.^[110] The exclusion of Black testimony, once overtly codified in Slave and Black codes, persists in modern evidentiary rules that disproportionately target Black defendants, reinforcing systemic racial disparities in the criminal legal system, and preserving the racial hierarchy that courts once explicitly enforced.

D. The Precursor to Rule 609

This subsection details the legislative history of Rule 609, including the role of Senator John Little McClellan, a staunch segregationist, in shaping the rule to disadvantage Black criminal defendants. It illustrates how Rule 609’s adoption coincides with mass incarceration and functions as a continuation of the historical efforts to exclude and discredit Black voices in court. The end of more explicit racist laws has given rise to subtler, facially neutral ways of achieving the same results. To understand the artful rebranding of facially neutral racist ideology, the Congressional proponents of Rule 609 will be exposed.

1. Impeachment by Prior Convictions Before Rule 609

The use of prior convictions predates Rule 609. Robert Dodson traced the history of the use of prior convictions for impeachment.^[111] Following emancipation and the recognition of the right of criminal defendants to testify on their own behalf, state and federal courts used a variety of rules to admit prior conviction evidence.^[112] In 1965, the D.C. Circuit Court decided Luck v. United States and established a balancing test that was eventually incorporated into Rule 609 and many state rules of evidence.^[113] This balancing test favors admission of a witness’s prior convictions for impeachment, but permits a judge to exclude evidence despite its relevance if “the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility.”^[114] Though this balancing test strongly favors admission, the court in Luck explicitly addressed concerns that admission of prior conviction evidence created a dilemma for a criminal defendant and noted that “[t]here may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.”^[115]

The court outlined the factors to consider when determining whether to admit evidence of a defendant’s prior conviction. Those factors include “the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important . . . for the jury to hear the defendant’s story than to know of a prior conviction.”^[116]

Notably, despite the court’s strong language concerning the dangers of admitting evidence of a criminal defendant’s prior convictions, in 1970—as the War on Drugs began ravaging Black communities and racialized mass incarceration surged to unprecedented levels—Congress abandoned the balancing test in Luck and concluded that prior conviction evidence is always admissible, leaving judges with no discretion to exclude it.^[117]

Similarly, the drafters of Rule 609, led by Senator McClellan, initially rejected the logic of Luck and allowed all evidence of prior convictions with no judicial discretion.^[118] Dodson outlines significant criticism and debate in Congressional discussions over the use of the balancing test in applying the Rule.^[119] The final version of Rule 609, in part, rejected McClellan’s attempt to strip judges of discretion to exclude evidence of prior convictions.^[120]

This debate must be understood within the context of the time, namely, the War on Drugs and the explosion of mass incarceration of Black men in the United States.^[121] The right to testify for Black people was explicitly in response to the Thirteenth Amendment. Yet the combination of the War on Drugs and Rule 609 would soon effectively undermine that right, leaving Black defendants at a major disadvantage in criminal trials and tilting the odds strongly toward conviction. The old order was not maintained without intentionality. Protectors of an old way of life sought limitations on Black freedom. They understood that limiting the right to testify would—like the Punishment Clause of the Thirteenth Amendment—ensure a perpetual underclass of Black people.

2. Senator John Little McClellan

Although Senator John Little McClellan was one of the foremost proponents of Rule 609, other members of Congress shared the same sentiments.^[122] McClellan played a significant role in compelling Congress to abandon the balancing test in Luck—he advocated for always using prior conviction evidence.^[123] He believed there should be no discretion exercised by judges to exclude prior convictions.^[124]

Behind the veil of facially neutral rhetoric of Rule 609, McClellan carefully constructed a Thirteenth Amendment violation. He—with other slavery sympathizers—orchestrated a quintessential incident of slavery.^[125] Together, these men advocated for and knowingly implemented a series of legal weapons,^[126] built on the legacy of slavery, in order to control and subjugate Black people back to the condition of slavery.^[127] Their weapon—Rule 609—like other new forms of control, gave courts, prosecutors, and juries the ability to, in name, provide Blacks with the right to testify, but in practice, the ability to limit testimony or completely discredit it. This section will closely examine Senator McClellan’s segregationist intentions, racist statements, views, and actions, as well as upend his stated purpose of Rule 609, while highlighting his true objectives.

John Little McClellan was an American lawyer and a long-time politician.^[128] He was a member of the Democratic Party, serving as the U.S. Representative to Arkansas from 1935 to 1939, and later, as the U.S. Senator from 1943 until his death in 1977.^[129] McClellan was one of the most senior members of the Senate and chairman of the Senate Appropriations Committee.^[130] He served longer than any other senator in Arkansas history.^[131]

McClellan is remembered for being a highly influential congressman, especially known for being tough on crime and his extensive overhaul of the United States Criminal Code.^[132] McClellan’s accomplishments in upholding white supremacy are vast and remain in force today, from preventing Black judges from serving on the bench, to creating a criminal legal system that served to maintain a caste system. McClellan’s impassioned efforts to pass legislation to maintain an old order effectively reimagined the caste-based slavery system this country was founded upon.

In 1937, after two years in office, McClellan voted against the Gavagan Anti-Lynching Bill, which aimed to make lynching a federal crime and hold states and local officials accountable for failing to prevent or prosecute lynching.^[133] Key provisions included allowing federal courts to try lynching cases and imposing fines on counties where lynchings occurred.^[134] McClellan fiercely opposed this bill, going so far as to deliver an impassioned and most definitely rehearsed polemic on the House floor:

Let us strip this thing of its sham and pretense. No one is deceived. You parade under the guise of wanting to blot out crime. That is the excuse you offer for sponsoring this bill, but the veil you wear is so transparent that your real purpose is revealed rather than concealed. You primarily desire to rebuke, embarrass, and humiliate the Southland, and at the same stroke, for political purposes, make a gesture calculated to win political support from the Negro race. Thus motivated you proceed in the name of human rights and liberty, as you claim, and some of you, particularly the gentleman from New York [Mr. Fish], have gone so far as to say that on this issue human rights rise above the Constitution.^[135]

McClellan’s argument protects white supremacist and their crimes against Black humanity. He reasserts the argument of the Confederate South—a narrative that justifies racial hierarchy with a long-discredited claim of federalism, States’ rights and the grateful “negro.” He sought to preserve the days of the past where lynching a Black man was an authorized right and a sanction form of order maintenance. While McClellan distracts the floor with some obscure constitutional argument, his bigotry cannot be hidden from plain view:

The efforts of some of you from New York City to lead this great reform movement and in your denouncements against this crime remind me very much of the Negro boy who was so black that all of his white friends called him “Midnight.” He was not resentful of the white man’s thus referring to his color and black features, but a yellow Negro, thinking to emphasize the distinction between their colors, hollered across the street to him, “Hello, thar, Midnight,” and the black boy replied, “Shut up; you is about a quarter to 12 yourself[.]”^[136]

Let us strip McClellan of his sham and pretense now. McClellan’s racist ideology seeps through with the use of stereotypes, colorism, and his attempt to discredit anti-lynching efforts. By recounting a story where a dark-skinned Black boy is called “Midnight” and a lighter-skinned Black boy is referred to as a “yellow Negro,” McClellan reinforces harmful racial divisions and presents them as humorous rather than what they really are—order maintenance that employs skin color as a weapon of oppression. The comparison suggests that those advocating for justice are hypocrites, implying they are not much different from those they criticize. This approach downplays legitimate concerns about lynching and its prohibition while treating racist and dehumanizing practices as acceptable. Beneath humor lies a clear belief in racial hierarchy and a resistance to progress, making it evident that McClellan sees social change as something to be mocked rather than supported.

McClellan’s racist aims did not stop with voting against anti-lynching legislation. In 1969, McClellan introduced to Congress one of the first versions of the Racketeer Influenced and Corrupt Organization Act (“RICO”): the “Organized Crime Control Act of 1970.”^[137] The purported purpose of the bill was to target Mafia organizations in the country, but more broadly to intimidate and imprison Italian immigrants. Notwithstanding their skin color and census categorization, Italians, at the time, were considered “non-white,” “in-between” people who did not qualify as McClellan’s idea of the perfect Aryan race.^[138]

When introducing and defending the bill, McClellan anecdotes the lynching of a man by the Mafia to rally behind his fascist cause.^[139] He decried the crimes of the Mafia, calling for the “right of a society to be free and to be protected from the assassin, the robber, the murderer, and the rapist.”^[140] But, of course, only if the assassin, robber, murderer, and rapist are non-Aryan. What is and was abundantly clear is that McClellan only opposes lynching when it is not an Anglo-white man tying the rope.

Moreover, McClellan’s role in the expansion of RICO prosecutions must be understood within this broader framework of white supremacist legislative maneuvering. Just as the Jim Crow-era Black Codes criminalized Black existence, RICO and later gang statutes^[141] have become the contemporary legal instruments to strip Black and Brown people of their full citizenship.^[142] McClellan’s vision, while cloaked in anti-crime rhetoric and the so-called pursuit of justice, was always about racial control through continued oppression under the law.

McClellan was a staunch segregationist. He lent his name to the Southern Manifesto, signed by eighty-two representatives and nineteen senators in opposition to the 1954 U.S. Supreme Court decision in Brown v. Board of Education.^[143]

In 1967, McClellan obstructed the confirmation of Thurgood Marshall, the first Black Supreme Court Justice.^[144] McClellan, along with a few other white supremacist congressmen, filibustered for six hours to prevent a vote on Justice Marshall’s confirmation.^[145] It took over a month to confirm Justice Marshall, whereas the most recent three white nominees before him were nominated and confirmed in under two weeks.^[146] A year before that, McClellan voted against confirming Constance Baker Motley as United States District Judge for the Southern District of New York.^[147] Judge Motley was the first Black woman appointed under Article III of the Constitution to a lifetime judgeship.^[148]

McClellan had a clear and manifest goal—to prevent Black people from participating in any part of our judiciary. From refusing to vote for Black judges nominated to the bench to weaponizing the criminal code to ensure the badges and vestiges of chattel slavery live on, McClellan was the puppet master of a clear network of several singular acts that spun a web to prevent Black people from gaining full citizenship in this country.

The list of McClellan’s evils has no end. In 1970, McClellan opposed congressional measures taken to enforce integration.^[149] He described the South as being “forced” to integrate and being discriminated against by integration laws.^[150]

When creating the Federal Rules of Evidence, Congress debated between two versions of Rule 606(b): one would allow inquiries into instances of juror bias or prejudice, and another version that would effectively prohibit such inquiries. McClellan was the fiercest advocate against the former. He wrote a letter to Judge Albert B. Maris, Chairman of the Committee on Rules of Practice & Procedure, arguing that “it would [not] be possible to conduct trials, particularly criminal prosecutions, as we know them today, if every verdict were followed by a post-trial hearing into the conduct of the juror’s deliberations.”^[151] His successful objection into jury bias is one reason that racially motivated jury nullification exists today. His objection permits juries to treat a defendant’s election not to testify as improper propensity evidence.^[152]

McClellan sponsored substantial legislation while in office, most of which served to disproportionately put Black people in prison. His post-Brown legislative efforts linked civil rights advancements to crime rates, limited judicial discretion in sentencing, and framed crime policy through racial anxiety.^[153] In the late 1960s, a heroin epidemic ravaged urban Black communities.^[154] In response, McClellan moved to increase the penalties for drug trafficking, including denying bail to anyone accused of a violation under the act.^[155] He introduced legislation to create harsher bail guidelines^[156] and mandatory minimum sentences^[157] that disproportionately impacted Black communities.^[158]

Throughout McClellan’s career, he opposed any congressional effort aimed at dismantling the enduring vestiges of the chattel slave system. By obstructing measures designed to protect Black Americans from racial violence and systemic discrimination, McClellan effectively worked to preserve white supremacy through state-sanctioned control. His legislative record reveals a calculated effort to uphold the “badges and incidents” of slavery by shifting racial oppression from the plantation to the prison. Mass incarceration became his weapon of choice, serving as a legal substitute for the physical bondage of chattel slavery, ensuring that Black communities remained disproportionately policed, prosecuted, and imprisoned.

Through policies that criminalized Black existence rather than addressing systemic racial injustices, McClellan linked the Civil Rights Movement to crime and perpetuated a modernized form of servitude under the guise of law and order. His role in expanding the carceral state underscores a broader historical pattern in which racist policies were repackaged in new forms to evade constitutional protections, demonstrating that the fight for true freedom did not end with emancipation but instead took on new and insidious forms.

3. Creating Rule 609

McClellan advanced white supremacy by proposing a version of Rule 609 that mandated admission of all felony convictions against a criminal defendant—without exception and without allowing judges any discretion to exclude prior convictions—even when the prejudicial impact far outweighed their probative value.^[159] Speaking “on behalf of himself and Senators Hruska, Roth, Talmadge, and Thurmond,”^[160] McClellan advocated for the proposed rule mandating the “absolute admission of prior convictions with no exceptions.”^[161] He strongly opposed “an alternate proposal that would have limited the evidentiary use of prior convictions to only those crimes involving dishonesty and false statements by a criminal defendant.”^[162] From the Senate floor, he stated:

We have gone pretty far already in trying to protect criminals and granting every advantage to them against society. No one can deny that we provide every legal and legitimate right to make certain that a defendant charged with crime has a fair trial. And that aspect of the law should be defended and maintained. But why should one who has already been convicted of rape or murder and is later being tried for armed robbery, not be able to be questioned about his previous crimes, so that a jury might properly evaluate the credibility of the testimony he is giving—properly determine if he should be believed?^[163]

McClellan’s true intent becomes unmistakable when we examine the impact of his own words. His claim that convictions for rape or murder should determine a person’s credibility is rooted not in objectivity but in fearmongering. There is no connection between committing even the most heinous crimes and an inability to tell the truth about an unrelated matter. Rape and murder convictions—while inflammatory—are not the typical offenses of most criminal defendants. Instead, minor offenses are far more common. Yet, they are weaponized under Rule 609 to cast untrustworthiness. By invoking rape and murder, McClellan effectively manipulated public perception, ensuring that even those with far lesser offenses were painted with the broad brush of dishonesty and further entrenching systemic bias against criminal defendants,^[164] in violation of the Thirteenth Amendment.

II. The Legal Argument: Rule 609 as a Badge and Incident of Slavery

Section One of the Thirteenth Amendment states, “[n]either 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.”^[165] This section posits that statements made during the debates and ratification of the Thirteenth Amendment show that Congress intended not only to abolish chattel slavery but also to remedy ongoing forms of oppression.^[166] Rule 609 is one such example.^[167] Ratified in the face of fierce white supremacist opposition, the Thirteenth Amendment’s plain language emerged broad enough to carry the “tremendous potential [] to be a powerful battering ram against any persistent vestiges of servitude,” just as its proponents intended.^[168]

A. The Scope of the Thirteenth Amendment

Understanding the theoretical framework of the Thirteenth Amendment provides context for examining its practical application. While the text of Section One has been interpreted to be narrowly tailored to end chattel slavery,^[169] its constitutional and historical roots reveal a more expansive mandate.^[170] The Thirteenth Amendment was created to reach beyond chattel slavery to confront other forms of racial, economic, and social exploitation at the time of its ratification.^[171] This broader reading is grounded in the intentions of the Amendment’s drafters and the Founding-era’s understanding of slavery as a system of domination.^[172]

The first section of the Amendment borrows its language from the Northwest Ordinance of 1787,^[173] but the Founders’ conception of slavery was broader than chattel bondage. Founding-era thinkers understood slavery as domination,^[174] and critics ranging from early feminists to proslavery theorists debated whether marriage, industrial labor, or poverty constituted forms of slavery.^[175] Many theorists of the time believed that the abolition of chattel slavery would logically lead to opposing poverty and economic exploitation more generally.^[176]

This Founding-era understanding was not lost on Radical Republicans during the Civil War-era. The Amendment’s architects viewed slavery as encompassing both labor exploitation and racial subjugation.^[177] They believed abolition would restore the rights of laborers of all races and protect against racial discrimination. Economic, sexual, and cultural oppression were all forms of slavery requiring legislative enforcement.^[178] The chief drafter of the Thirteenth Amendment, James Ashley, embraced anti-slavery constitutionalism and believed slavery was unconstitutional even before the Thirteenth Amendment.^[179]

Others similarly embraced a transformative vision of abolition. Thaddeus Stevens described the Civil War as a “radical revolution” and asserted that true racial justice depended on economic security.^[180] He advocated for confiscating large slaveholders’ estates and redistributing them to former slaves.^[181] Stevens sought to empower Congress to eradicate the structural remnants of slavery and insisted on property rights and protection for the newly freed.

Still, others promoted a more expansive view of freedom.^[182] Even before the Amendment’s passage, Charles Sumner argued that the Thirteenth Amendment would establish legal equality.^[183] Though his equal protection language was excluded from the final text, it reemerged in the Fourteenth Amendment.^[184] Sumner later advanced civil rights legislation to guarantee Blacks access to public accommodations, education, jury service, and burial rights. For Sumner, true freedom required dismantling social and legal hierarchies.^[185]

The Amendment’s drafters—and many in the Founding-era—understood slavery as extending beyond chattel bondage to encompass broader systems of domination. The Thirteenth Amendment, including Section One, is a tool for dismantling systemic domination. To fulfill its promise, we must embrace a robust interpretation that confronts all of slavery’s legacies in all its modern forms, not just chattel slavery.

1. “Badges and Incidents” of Slavery

More than 160 years after its ratification, legal scholars also debate the scope of the Thirteenth Amendment’s second section. Some adopt a very narrow view, arguing that Congress’s enforcement power under Section Two is confined to preventative measures designed solely to avert a return to chattel slavery.^[186] On the other end of the spectrum are scholars who believe “that the judiciary has concurrent power with Congress to define and offer redress for the badges and incidents of slavery.”^[187] These competing interpretations of the second section trace their intellectual lineage to the opposing factions of the Civil War era. On one side are the descendants of those who resisted the Amendment’s ratification and sought to preserve the institution of chattel slavery or its vestiges. On the other hand, are the inheritors of the vision of those who authored the Amendment, fought for its ratification, and sought to dismantle not only chattel slavery itself, but also its enduring badges and incidents. This divide reflects a fundamental tension over how expansive the Amendment’s promise of freedom should be understood and enforced in contemporary society.

Those who adopt the broad approach of the second section rely on historical records and the Supreme Court’s first attempt to consider the constitutionality of the Civil Rights Act of 1875 in the Civil Rights Cases of 1883.^[188] They argue that the Court recognized that slavery extended beyond the chattel institution and begrudgingly proclaimed, “the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.”^[189]

Antebellum and postbellum writings provide the pre-Civil Rights Cases meanings given to “incidents” and “badges.”^[190] The word “incident” in the phrase “incident of slavery” has a similar meaning to the use of the word “incident” in other areas of law.^[191] An antebellum legal dictionary defined incidents as anything “depending upon, appertaining to, or following another, called the principal.”^[192] In this sense, an “incident of slavery” includes “any legal right or restriction that necessarily accompanied the institution of slavery,” i.e., “aspects of property law” applicable to or “civil disabilities” imposed on enslaved persons as property.^[193] One quintessential incident of slavery was the prohibition on the right to testify.^[194]

“Badges,” on the other hand, have a broader definition and are used more metaphorically. The term “badge” originates from the Greco-Roman practice of marking low-status people—like slaves or convicts—through branding, tattoos, or collars, evolving into a metaphor for legal and social subordination.^[195] It is defined as a law or social custom that imposes stigmatic harm on a subordinate group.^[196] In the American context, “badges” referred to “indicators, physical or otherwise, of African Americans’ slave or subordinate status.”^[197]

The term came to refer to “ways in which southern governments and white citizens endeavored to reimpose upon [formerly enslaved] the incidents of slavery or, more generally, to restrict their rights in such a way as to mark them as a subordinate brand of citizens.”^[198] A “badge” is “any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens.”^[199]

For purposes of this Article, I use the term badge to refer to the diminished status Black people are subjected to because of their skin color, and the term incidents to refer to the limitation on Black people’s ability to exercise the right to testify. Either badge or incident application supports a slavery-era notion that Black people are inherently untrustworthy, lack moral character, and should be incompetent to testify in a criminal court, and if they do, should not be believed. Insofar as the badges and incidents are not equally applied to all and deprive citizens of civil rights which are secured to other citizens in such a way as to mark them as subordinate, they are in violation of the Thirteenth Amendment. The ultimate aim^[200] of the diminished status—the badge—is to subordinate Black people, to ensure a permanent caste system, to cage them, and perpetuate mass incarceration through punitive, protracted prison sentences, thus reimposing the “incidents” of slavery.

Identifying badges and incidents of slavery requires an assessment of the connection between group history and the nature and origin of the harm or condition that is being complained of.^[201] To be reasonably considered a badge or event of slavery, the nature of the harm must have a stronger connection to the system of slavery as the group’s connection to slavery wanes.^[202] In this way, the constitutional command to eliminate the badges and incidents of slavery remains tethered to the actual historical facts of American slavery and its particular victims. Accordingly, because of how race, power, and group status interacted under the institution of chattel slavery, “the Thirteenth Amendment should be expressly construed in terms of race, power, and group status.”^[203]

Examples of incidents and badges of slavery include: (1) Racially targeted criminal laws and punishment; (2) Voter suppression laws; (3) Racially restrictive housing practices; (4) Jim Crow segregation statutes; (5) Exclusion from jury service; (6) Barriers to education and economic mobility; (7) Denial of access to public accommodations; (8) Discriminatory labor arrangements, such as peonage; (9) Race-based immigration exclusions; (10) Family separation policies affecting Black families; (11) Policing practices rooted in racial control;^[204] and (12) the Exclusion of Blacks right to testify. Such badges and incidents were not frozen in 1865 but evolved to reflect modern forms of racialized domination.

Notwithstanding the limited use of the Thirteenth Amendment badge and incident approach, the Reconstruction Amendments represented a fundamental shift in constitutional structure. The drafters of the Amendment explicitly gave enforcement power to Congress, not just to the Judiciary or the Executive Branch, because those branches alone could not be trusted with it. Congress can make laws to prohibit these badges, but the Supreme Court and the Executive also have a duty to enforce them. When they do not, it makes white supremacy stronger, protects it, and furthers it. In short, in passing the Thirteenth Amendment, Congress not only ended sanctioned involuntary slavery, but through Section Two provided to eradicate all vestiges, badges, and incidents. Rule 609 and its prophylactic effect of limiting Black defendants’ ability to testify is a vestige, badge, and incident of slavery.

In the end, this Article adopts a broad application of Section Two of the Thirteenth Amendment that protects against modern-day badges and incidents of slavery. Specifically, “[t]he Thirteenth Amendment provides both courts and Congress with the authority to remedy this legacy of inequality arising from the slave system in the United States.”^[205] Rule 609 is used to subjugate the descendants of enslaved Africans to slave like conditions. Under its constitutional mandate, the United States Supreme Court has the authority to evaluate laws and policies that may constitute badges and incidents of slavery and, consequently, abolish them.

2. United States v. Stanley, Civil Rights Cases, and Progeny

As early as 1883, the Supreme Court unambiguously held that the Thirteenth Amendment vested Congress with the “right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents.”^[206] In United States v. Stanley, the same case in which the Supreme Court held that the Thirteenth Amendment protects against badges and incidents of slavery, it considered the Civil Rights Cases, a series of cases brought under the newly passed Civil Rights Act.^[207] In each of these cases, the plaintiff sought redress after being denied privileges and accommodations based on their race.^[208] The Supreme Court held that individual acts of discrimination against Black people did not constitute a badge or incident of slavery; thus, the Thirteenth Amendment did not protect against this type of discrimination.^[209]

However, in 1968, in the case of Jones v. Alfred H. Mayer Co., the Supreme Court swung far in the other direction.^[210] In Jones, the Supreme Court considered 42 U.S.C. § 1982, which prohibits housing discrimination.^[211] Specifically, Section 1982 prohibits any racially motivated refusal to sell or rent a property.^[212] In analyzing the constitutionality of this law, the Supreme Court affirmed that the Thirteenth Amendment grants legislatures the power to abolish all badges and incidents of slavery by public and private actors alike.^[213] The Court further affirmed that Congress has the power to determine what constitutes a badge or incident of slavery.^[214] The Court stated that:

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep. ^[215]

The Supreme Court upheld 42 U.S.C. § 1982 as constitutional under the Thirteenth Amendment, concluding unambiguously that housing discrimination may be considered a badge of slavery that Congress is empowered to prohibit.^[216] Following the Supreme Court’s logic that the right to live in the place of one’s choosing is essential to the Thirteenth Amendment’s guarantee of freedom, so too is the right to testify on one’s own behalf against criminal charges and the possibility of incarceration.

3. Modern Threats to Jones

Those who view the Thirteenth Amendment narrowly argue that only slavery in its most archaic and physical form can be eradicated.^[217] The Supreme Court explicitly disagreed in Jones, where it stated, “[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.”^[218] The Court raised the question: “Does the authority of Congress to enforce the Thirteenth Amendment ‘by appropriate legislation’ include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes.”^[219]

Despite such clarity, Jones is under attack. Calls to castrate the Thirteenth Amendment have reached the Circuit Courts. In 2013, the Tenth Circuit begrudgingly applied the Jones rationality test to hold that the Federal Hate Crimes Act was constitutional in United States v. Hatch.^[220] Defendant-Appellant William Hatch, who pled guilty to committing a hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act for kidnapping and burning a swastika into the arm of a mentally disabled Navajo man, raised federalism concerns in his appeal.^[221] Specifically, he argued that Congress’s badges-and-incidents authority was too narrow to allow them to create the hate crimes act at issue.^[222] His argument of States’ rights harkens back to the arguments of the Confederates during the Civil War. The Tenth Circuit admitted to sharing those concerns and wrote that “nearly every hurtful thing one human could do to another and nearly every disadvantaged state of being might be analogized to slavery.”^[223]

That concern was renewed in United States v. Cannon.^[224] There, three white men were convicted of a federal hate crime under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act after attacking a Black man at a bus stop.^[225] Defendants argued that the hate crime act was an unconstitutional overreach of States’ rights.^[226] The Fifth Circuit affirmed the lower court’s holding that the Act was constitutional, but let all know that their hands were tied: “Defendants argue that subsequent Supreme Court decisions related to the Fourteenth and Fifteenth Amendments cast doubts on the continued viability of Jones, or show that Jones should be limited. Defendants[’] assertions are not frivolous.”^[227]

These challenges to Jones’s continued viability advocate for the same position of the original adversaries of the Amendment. They read the Thirteenth Amendment to apply only to physical bondage as was known in the times of chattel slavery. They cabin the power of the Thirteenth Amendment to chattel slavery alone and reject the framers’ broad understanding of slavery. They assert that States’ rights—including the right to impose the chattel slavery vestiges of lynching upon Black people today—are theirs to exercise. This age-old interpretation of States’ rights envisions a version of the United States where the Civil War was not won by the North, the Thirteenth Amendment was never ratified, and Black people could be killed at the whim of any white supremacist.^[228]

The possibility of overturning the broad Jones standard is a very real and imminent threat. With six conservative justices,^[229] a renewed Trump presidency, and a Republican-controlled Congress, the rollbacks of our most dearly held Supreme Court holdings are on the horizon.^[230] Suggestions that the standard, instead, be a “congruence and proportionality” test,^[231] a much more stringent standard, command the nation to return to a time before the enactment of the Thirteenth Amendment and refuse Black Americans their constitutionally vested right to be protected from race-based subjugation. But it is also “unsupportable as a matter of originalism and contradicts or ignores the Amendment’s historical context, principles of judicial review,^[232] and Supreme Court doctrine regarding the relationship between Congress’s Enforcement Clause power and the Amendment upon which such power is based.”^[233]

The Supreme Court readily applies the “rationally related” standard to uphold broad federal laws under the Commerce Clause, such as RICO.^[234] Almost one hundred percent of those charged under RICO are convicted, ninety percent of those convicted are sentenced to prison,^[235] and forty-three percent of those convicted of a RICO violation are Black.^[236] Similarly, the Supreme Court refuses to apply any interest-balancing standard when opining on the Second Amendment, stating that:

no other enumerated constitutional right [with] core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.^[237]

When it comes to protecting white gun owners, the Supreme Court stands steadfast in the protection of the Second Amendment.^[238] The same originalist approach the Supreme Court has embraced to expand RICO and gun rights under the Second Amendment should be equally applied to enforcing the Thirteenth Amendment’s ban on the badges and incidents of slavery.

B. Applying the Thirteenth Amendment to Rule 609

Rule 609 is a modern incarnation of the historical exclusion of Black testimony that was foundational to slavery, Slave Codes, and the Jim Crow-era Black Codes. While overt racial exclusions have been abolished, Rule 609 preserves the same racial subjugation under a facially neutral guise. It disproportionately discourages Black defendants from testifying due to their statistically higher likelihood of having prior convictions.^[239] As such, Rule 609 is a direct descendant of laws that prevented enslaved and free Black people from testifying, functioning as a contemporary badge and incident of slavery.

1. Rule 609 fits squarely within the historical understanding of the badges and incidents of slavery doctrine

The Supreme Court has long recognized that barring Black people from testifying was a crucial mechanism of slavery. Even after the Civil War, Southern states strategically used the Jim Crow-era Black Codes to maintain testimonial exclusion as a means of racial control. The Supreme Court’s ruling in the Civil Rights Cases affirmed that disqualifying Black people from testifying was one of the badges and incidents of slavery—a practice inextricable from the broader system of racial oppression.^[240]

Even in its most narrow reading of the Civil Rights Cases of 1883, the Supreme Court conceded that denying Black citizens the right to testify was a badge and incident of slavery:

The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution.^[241]

Rule 609’s effective prevention of Black witnesses from testifying in court is an incident of slavery based on the badge of color of their skin. Examples supporting this are littered within our nation’s historical record:

Where slavery existed within a colony or state, an accused black was often summarily punished at the whim of his or her owner. In the infrequent instances when an accused black was allowed a trial, he or she was tried and punished in an all-white court system in which the defendant could neither testify nor seek civil redress against a white person. Although most northern blacks gained access to the regular court system by the middle of the nineteenth century, their testimony, when permitted against a white person, was rendered virtually meaningless by all-white juries.^[242]

The exclusion of Black people from testifying or serving as witnesses in court was a crucial mechanism for maintaining and furthering the objectives of the chattel slave system in the United States. This practice, deeply entrenched in both law and custom, served multiple purposes that reinforced the racial hierarchy and protected the interests of slaveholders. The prohibition of Black testimony denied enslaved and free Blacks the ability to seek legal redress for crimes and abuses committed against them by whites. This exclusion effectively gave white people “a letter of license to commit any outrage which passion or wickedness may prompt.”^[243] White people had impunity to abuse, assault, or even murder Black people without fear of legal consequences as long as there were no white witnesses—or, at least, no white witnesses willing to risk their lives or social status for a Black person. This lack of legal protection reinforced the notion of Black people as property rather than persons deserving of rights and justice. It also helped maintain the economic foundations of slavery by preventing enslaved people from challenging their status or contesting the claims of slaveholders. Without the ability to testify, enslaved people could not effectively argue for their freedom or property in court, even if they had legitimate claims. This limitation made it difficult for enslaved people to prove their free status if they were illegally held in bondage or to contest fraudulent claims of ownership.

By deeming Blacks inherently untrustworthy and incapable of providing reliable testimony, the legal system reinforced notions of Black inferiority and white supremacy that helped normalize and institutionalize racist attitudes throughout society, further entrenching the ideological underpinnings of slavery.

Rule 609 aligns directly with this historical framework. By allowing prior convictions to be introduced to impeach credibility, Rule 609 disproportionately silences Black defendants—particularly those with minor or nonviolent records resulting from racialized policing. Scholars have demonstrated that jurors struggle to ignore prior conviction evidence for reasons other than impeachment, despite judicial instructions to do so, and often infer that a defendant with a record is more likely to be guilty.^[244] The result is a modern evidentiary rule that, like its predecessors, prevents Black people from testifying in court by imposing a barrier uniquely affecting them.

III. Empirical and Social Science Support

1. The Psychological Impact of Rule 609 supports a “Badges and Incident” application

The great myth of Rule 609 is the limiting instruction. Specifically, in an attempt to mitigate the highly prejudicial nature of character evidence generally excluded by Rule 404,^[245] judges instruct the jury that they can only consider evidence admitted under Rule 609 to determine the credibility of the defendant-witness, and not to determine guilt of the crime charged.^[246] However, numerous studies have established that jurors are generally incapable of following such instructions and that the introduction of prior conviction evidence dramatically increases the likelihood of a conviction.^[247] Accordingly, defendants with criminal records are stuck with taking the stand and having the jury hear about their criminal history or remaining silent and losing the opportunity to share their side of the story and defend themselves.

Studies have found that the probability of acquittal in an otherwise evenly balanced case decreased from sixty-five percent to thirty-eight percent when the jury was aware of the defendant’s prior convictions.^[248] This stark reduction in acquittal rates demonstrates the powerful influence such evidence can have on jurors’ perceptions. Legal scholars have consistently noted that juries tend to pay close attention to prior conviction information, often despite contrary instructions from the court. ^[249] The prejudicial effect of admitting prior convictions is widely acknowledged in the legal community, with research indicating that jurors who are aware of a defendant’s criminal history are significantly more likely to convict than those without such knowledge.^[250]

Evidence of prior convictions has a strong effect upon jurors, building off the sixty percent of prospective jurors who already reject the presumption of innocence before trial has begun.^[251] Professors Theodore Eisenberg and Valerie Hans discuss the research of the National Institute of Justice, which produced evidence that the actual probability of conviction increases when jurors learn of prior convictions, and that this effect is exacerbated in particularly weak cases with little evidence.^[252] They write:

For cases with strong evidence against defendants, learning of criminal records is not associated with conviction rates. Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. The effect in otherwise weak cases is substantial and can increase the probability of conviction to over 50% when the probability of conviction in similar cases without criminal records is less than 20%.^[253]

A study by Professor Jeffery Bellin, where he conducted a 400-person mock jurors simulation, found:

The jury’s learning of prior convictions negatively impacted the defendant’s chances for acquittal. The jurors convicted most often (82%) when they learned that the defendant had a prior robbery conviction. The conviction rate was also elevated (73%) over the no record condition (62%) when the defendant was impeached with a “criminal fraud” conviction. Overall, jurors voted to convict 78% of the time in the two prior conviction conditions, but only 62% of the time when the same testifying defendant was not impeached with any prior crimes. This variance achieves statistical significance.^[254]

Bellin concludes, “the results reveal a clear ‘silence penalty.’”^[255] This silence penalty violates a criminal defendant’s Fifth Amendment right not to testify.^[256]

Judges have also recognized this danger. In United States v. Gilliland, the court stated: “[A]n obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality.”^[257] University of Connecticut School of Law Professor Julia Simon-Kerr explains:

For males ages twenty-five to thirty-nine, [B]lacks are imprisoned at rates six times greater than whites. Given rearrest rates, we can reasonably assume that some percentage of those prisoners will one day be witnesses or defendants again. If the latter, and assuming the previously-convicted have competent counsel, they will all be advised that if they testify they are likely to be impeached with their prior convictions. As a result, many will decide not to testify.^[258]

Indeed, it is now common practice for defendants to choose not to testify, or to be encouraged to make this abstention. In a study of trials in Philadelphia from the 1980s, forty-nine percent of felony defendants and five percent of misdemeanor defendants chose not to testify.^[259] The percentage of defendants who elect not to testify on their own behalf at trial has been increasing since the early twentieth century.^[260]

The decision not to testify has its own serious consequences. Richard D. Friedman argues that, though character impeachment of criminal defendants should be prohibited, some character impeachment of other witnesses should be permitted.^[261] Professor Friedman asserts that:

[T]he accused’s failure to testify affirmatively raises the jurors’ probability assessment of guilt from the baseline level. No matter how vigorously the court instructs the jurors not to take into account that failure to testify, they are almost certain to do so. This proposition is hardly novel, but it warrants close examination. Jurors consider the failure to testify not merely because they might lack the sophistication to follow the judicial instruction, or even because they are disposed to ignore the instruction so that they can implement their own sense of justice. Rather, . . . jurors tend to disregard the instruction because it is virtually incoherent.^[262]

IV. Solutions: Abolishing Rule 609

The legal and empirical evidence presented throughout this Article confirms that Rule 609 is a badge and incident of slavery, perpetuating the racial subjugation embedded in America’s legal system since the era of chattel slavery. In light of this, mere reform or modification of the rule is insufficient—Rule 609 must be abolished in its entirety. This section outlines legislative, judicial, and alternative legal strategies to eliminate Rule 609 and ensure that the right of Black defendants to testify is fully protected under the law.

1. Legislative and Judicial Approaches

This section proposes the following amendment to Federal Rule of Evidence 609: “For the purpose of attacking a witness’s credibility, evidence of the witness’s criminal convictions, including the underlying facts of those crimes, shall be inadmissible.”^[263]

The proposed amendment is derived directly from Montana’s Rules of Evidence.^[264] Montana is the only jurisdiction in the United States that does not allow prior convictions to be used for impeachment.^[265] Specifically, Montana’s Rule states, “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible.”^[266] This approach acknowledges that such evidence undermines the presumption of innocence and distorts jury decision-making.^[267]

While this Article recommends Montana’s language, it does not suggest that the State’s decision to eliminate prior conviction impeachment was progressive legal reform. Rather, the amendment reflects a historical pattern in which legal protections are extended selectively to protect white people, while leaving broader systems of racial oppression intact. Homogeneous, majority-white communities tend to advocate for less punitive criminal penalties, particularly when those penalties impact white defendants.^[268] In these communities, the absence of racial diversity correlates with lower incarceration rates and legal reforms aimed at reintegrating white people with criminal records into full civic participation.^[269] When amended, Black people were only 0.065% of the population of Montana. The decision to abolish prior conviction impeachment likely stemmed from that fact.^[270] Where race was not a factor, Montana restored “full citizenship” and social standing to white people. The historical and contemporary reality is that Black defendants remain disproportionately harmed by prior conviction impeachment, while white defendants in racially homogenous states benefit from legal reforms designed to protect them from perpetual second-class status.^[271]

Communities with lower racial diversity tend to support less punitive legal systems, while communities with higher racial diversity enact harsher criminal laws.^[272] In majority-white communities, the higher the diversity proportionally equates to stricter and harsher penal codes.^[273] This dynamic reflects a broader national pattern in which legal protections and sentencing reforms are disproportionately structured to benefit white defendants, while Black people remain subjected to harsher legal scrutiny.^[274]

Montana’s evidentiary framework should be federally replicated despite the disproportionate number of Black criminal defendants who will benefit. If done, the new Rule will mitigate the disparate impact of prior convictions on Black defendants. Rule 609 would no longer function as a modern mechanism of racial exclusion in violation of the Thirteenth Amendment. Congress enacted Rule 609 under the Necessary and Proper clause, but they should abolish Rule 609 by utilizing its enforcement authority under Section Two of the Thirteenth Amendment. The same Congressional authority used to pass hate crime laws, such as the Shepard Byrd Act and the Emmett Till Antilynching Act, should be leveraged to repeal Rule 609.^[275]

It is not enough for Rule 609 to be neutered. Rule 609 must have affirmative force. It should be amended to explicitly bar the admission of prior convictions through Congress’s power under Section Two.^[276] Prior convictions are a remaining vestige of the institution of chattel slavery that prevents Black citizens from testifying in court.^[277] Accordingly, the Thirteenth Amendment demands that prior convictions no longer be used as a basis for silencing defendants. While most critics of Rule 609 have advocated for merely reforming the rule into a lesser version of itself, such compromises do not go far enough. In his 1965 commencement address at Howard University, President Lyndon B. Johnson declared, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”^[278] Abolishing Rule 609 is not enough; Congress must affirmatively act to eradicate the lingering badges and incidents of the chattel slave system it has furthered.^[279]

Though legislative repeal by Congress through rule amendment is the most direct path toward abolition, litigation under the Thirteenth Amendment is also a viable avenue for legal challenge.^[280] The historical trajectory of civil rights litigation demonstrates that courts, when strategically engaged, can be instrumental in dismantling systemic racial discrimination.^[281] Legal advocacy organizations, such as the NAACP Legal Defense and Educational Fund (“LDF”), the American Civil Liberties Union (“ACLU”), and the Equal Justice Initiative (“EJI”), have long been at the forefront of challenging racially discriminatory laws and policies in the legal system. These organizations, along with grassroots movements, could play a critical role in launching direct legal challenges to Rule 609.

A direct constitutional challenge to Rule 609 under the Thirteenth Amendment would contend that the rule serves as a badge and incident of slavery, continuing the historical exclusion of Black testimony that began under slavery and was codified under Jim Crow. A case could be brought in federal court on behalf of a Black defendant whose ability to testify was impaired due to Rule 609, challenging the rule’s constitutionality under the Thirteenth Amendment’s prohibition on badges and incidents of slavery. By demonstrating the direct lineage between slavery-era laws excluding Black testimony and the modern effects of Rule 609, litigators can argue that Rule 609 serves the same function as previous testimonial exclusions: denying Black people the right to testify freely and thus denying them full citizenship in the courtroom.^[282]

Given the current Supreme Court’s reluctance to recognize structural racism, such arguments might not succeed in the near term. However, scholars and legal advocates should not be discouraged. Our framework is forward-looking, recognizing that abolitionist movements have always faced deaf ears, but continued their fight. Just as civil rights attorneys laid the groundwork for overturning Plessy v. Ferguson over decades, challenges to Rule 609 must be pursued persistently, shaping legal discourse even when immediate victories seem unlikely.^[283]

2. Alternative Legal Strategies

While the complete abolition of Rule 609 is the ultimate goal, alternative legal strategies can be pursued to challenge its constitutionality and mitigate its most harmful effects. These strategies include non-reformist reforms^[284] that would limit the rule’s application. While non-reformist reforms^[285] alone are not a sufficient solution, history has shown that step-by-step legal progress has played a crucial role in dismantling deeply entrenched systems of racial injustice, from the abolition of chattel slavery to the erosion of Jim Crow segregation and the gradual decline of the death penalty. Understanding abolition as a continuum, rather than a singular event, strengthens the argument for utilizing multiple legal avenues to combat Rule 609.

Beyond legislation and formal litigation, civil rights and social justice organizations can employ direct action to challenge Rule 609’s legitimacy in the public sphere. LDF’s success in overturning the separate but equal doctrine in Brown v. Board of Education demonstrates the power of strategic litigation, coupled with public pressure, to dismantle racial caste systems.^[286] A similar strategy could be deployed against Rule 609. Various efforts can contribute to such radical change, including public awareness campaigns that highlight the racial disparities caused by Rule 609, legislative advocacy efforts that pressure Congress to repeal Rule 609, and coalition-building among civil groups to unify efforts against testimonial exclusion.

If outright repeal of Rule 609 is not immediately feasible, non-reformist reforms can be pursued to limit its most harmful applications. While a non-reformist reforms approach is not the ideal solution, history has shown that gradual reforms have often laid the groundwork for broader abolitionist victories. Just as the abolition of slavery required Reconstruction-era amendments, and just as the movement to end the death penalty has seen progress through state-by-state repeal, curtailing Rule 609’s application could serve as a stepping-stone toward its eventual elimination.^[287]

Various non-reformist reforms of Rule 609 can be implemented to curtail its disproportionately prejudicial effect. One possibility is to restrict impeachment to crimes of dishonesty (e.g., perjury, fraud, or embezzlement), while excluding convictions for drug possession, assault, or other offenses that do not speak to credibility.

Another option is to impose stricter balancing tests to require judges to exclude prior conviction evidence if the prejudicial effect outweighs any probative value. Alternatively, barring the use of prior convictions in cases where the defendant’s testimony is crucial to ensuring a fair trial would limit the detrimental impact of Rule 609. Finally, imposing additional time-based restrictions on the admissibility of prior convictions, so that only recent convictions may be used for impeachment, would reduce the prejudicial effect on rehabilitated defendants. The ten-year limitation could be shortened to three years to comport with traditional statute of limitations and address issues of staleness.^[288]

While these non-reformist reforms would not fully eliminate the harm caused by Rule 609, they would significantly reduce its impact and provide greater protections for Black defendants facing impeachment. By combining strategic litigation, grassroots organizing, and non-reformist reforms, the movement to abolish Rule 609 can follow the historical blueprint of successful civil rights battles. Though the abolition of legal mechanisms that perpetuate racial subjugation has never been instantaneous, with sustained pressure and a clear constitutional basis—couched in the Thirteenth Amendment—Rule 609 can and must be abolished.

Conclusion

The Thirteenth Amendment purported to eliminate slavery but provided a mechanism for it to continue through incarceration for a crime. Throughout the 20th century, that mechanism has been used to incarcerate Black people at rates far higher than their white counterparts. The effect has been a new form of slavery for Black people in this country under facially neutral policies.

Similarly, the formerly enslaved and their descendants were granted the right to testify after emancipation, yet Rule 609 has provided a facially neutral method of silencing them. This Article has demonstrated that Rule 609, as envisioned and applied, runs afoul of the Thirteenth Amendment of the United States Constitution.

Fred Warren’s case illustrates the precise danger Rule 609 was designed to create—the silencing of Black defendants through the presumption of untrustworthiness. The prosecutor built her case on the expectation that Fred, like so many before him, would remain silent, allowing her narrative to go unchallenged. With a prior record and the looming threat of impeachment under Rule 609, the system all but dictated that Fred would not testify. Had he followed the conventional wisdom, he would have remained silent, allowing the prosecution’s carefully curated version to be the only version the jury heard.

Fred Warren chose to testify notwithstanding the undeniable odds. By testifying, he rebuffed what Rule 609 aims to prevent—he rejected his badge of Blackness and overcame the incident of testimonial exclusion. Fred chose to testify—directly challenging the presumptions of Rule 609—and faced the State’s false narrative to combat the assumptions against him, compelling the jury to weigh his voice alongside the evidence. In doing so, he shifted the course of his case and life. After hearing directly from him, his voice, and his humanity, the jury returned a not guilty verdict.^[289]

Let’s be clear, the system did not work. If it did, Fred would have been found guilty. The system was overcome. Fred Warren’s testimony did not rewrite history; his testimony simply provided a means for history to be told accurately. His case is uncommon—not because he was innocent, but because he took the risk to prove it. Countless criminal defendants before him, and many more to come, will remain silent out of fear that Rule 609 will stain their words and character beyond redemption. Their silence won’t stem from choice but from stipulation, as past convictions—relevant or not—would strip their words of sincerity and value in the jury’s eyes.

What is particularly revealing about Fred’s case is that every key player involved—the judge, the prosecutor, the victim, the defendant, the jury, and the defense attorney—were all Black. This fact demonstrates that Rule 609, and the lingering effects of the chattel slave system, are not merely a matter of Black and white, but rather the systematic and engulfing nature of white supremacy. The legacy of slavery does not always require white actors. It is embedded in the legal rules, assumptions, and practices that define the criminal legal system. Rule 609 operates as a weapon that compels Black people, within the confines of its facially neutral rhetoric, to limit Black voices, to constrain Black defendants, and to uphold a framework designed to devalue their testimony.

Senator McClellan propagated a racist objective in his advocacy and implementation of Rule 609. Much like McClellan believed criminal defendants should be judged based on their prior bad acts, specifically their prior criminal convictions, he, too, and the legislation he sponsored, should be judged on his. White Supremacy is his prior bad act, and Rule 609 should be judged accordingly.

Rule 609, the use of prior convictions, is not merely an evidentiary rule; it is a relic of an era, from a man who, through his own words and actions, proved to be anti-Black. Rule 609 is a badge that sought to enshrine the belief that Black people were inherently untrustworthy and should not be believed. It functions as a modern badge and incident of slavery under the guise of tough on crime. It, in effect, tells defendants, like Fred Warren, that their voice does not matter, that their past criminal convictions—regardless of its relevance or legitimacy—can and will be used to discredit their present.

This Article has demonstrated that Rule 609, as envisioned and applied, violates the fundamental principles of justice and the plain language of the Constitution. The Thirteenth Amendment intended to abolish slavery and all of its lingering effects, yet Rule 609 continues to uphold one of its chief legacies—the silencing of Black testimony in court. It is time to carry on the work of the Thirteenth Amendment and truly abolish the lingering status of sub-citizen upon Fred Warren and the countless other descendants of enslaved Africans who continue to be silenced. The Advisory Committee on Evidence Rules should recommend abolishing Rule 609 and bar cross-examination based on past criminal conduct when the impact of those convictions reimpose badges and incidents of slavery. Congress and state legislators should abolish the rule, and if not, the Supreme Court should invalidate the rule as a violation of the Thirteenth Amendment.

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1. Prince George’s County, Maryland, is the most populated county in the United States where a majority of residents are Black (63% of the 967,201 residents). See Prince George’s County, Maryland, Decennial Census, Table P8 Race, U.S. Census Bureau, https://data.census.gov/profile/Prince_George’s_County,_Maryland?g=050XX00US24033#race-and-ethnicity [https://perma.cc/N7TW-3W6D] (last visited Sep. 14,2025).

2. A pseudonym is used to protect the privacy and confidentiality of the individual because their case was expunged following their acquittal.

3. See U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself.”).

4. Id.

5. See Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 Cornell L. Rev. 1353, 1356–57 (2009) (“60% of [criminal] defendants without criminal records testified, compared to 45% with criminal records”).

6. See James E. Beaver & Steven L. Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 Temp. L.Q. 585, 604–05 (1985) (“Sixty-five percent of the criminal defendants without a prior conviction were acquitted of the present charge, whereas only thirty-eight percent of the defendants with a prior conviction were acquitted of the current charge.” (citing Harry Kalven, Jr. & Hans Zeisel, The American Jury 160 (1966))).

7. Jeffrey Bellin, The Silence Penalty, 103 Iowa L. Rev. 395, 398 (2018).

8. See id. at 397 (“In modern times, only about half of criminal defendants take the witness stand. Notably, refusing to testify is not limited to guilty defendants. Around 40% of defendants later exonerated by DNA evidence declined to testify at their initial trials.”) (citing Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 160 (2011) (reporting that 53% of “exonerees took the stand at trial to claim their innocence”)).

9. Id. at 400.

10. See Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 Val. U. L. Rev. 311, 331 (1991) (characterizing defendants’ choice not to testify as “an everyday staple of trial practice”).

11. See Alfred Avins, The Right to Be a Witness and the Fourteenth Amendment, 31 Mo. L. Rev. 471, 472–73 (1966) (explaining that despite the general rule in antebellum courts permitting testimony from anyone, even those intoxicated, insane, or as young as ten years old, several restrictions persisted, such as those for disbelief in God, “[c]onviction of an infamous crime,” and interested parties); see also Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1452 (2005).

12. See Avins, supra note 11, at 473 (“[T]he rule was well established in the slave states, and in several of the free states, that no Negro or mulatto could testify in cases in which white persons were parties . . . . In some northern states, the early restrictions on Negro testimony seem to have been a product of slavery and not color. In New York it was held that a slave could not be a witness but that a free Negro might, and that an emancipated slave was competent to testify to facts which occurred before he obtained his freedom. The Supreme Court of New Jersey made the same ruling.”).

13. The incorporation doctrine is central to Fourteenth Amendment jurisprudence as it establishes that certain protections in the Bill of Rights apply to State actions through the Fourteenth Amendment’s Due Process Clause. See Jay S. Bybee, The Congruent Constitution (Part One): Incorporation, 48 BYU L. Rev. 1, 4 (2022). Prior to the Fourteenth Amendment, the Supreme Court held that the Bill of Rights did not apply to the States; see also Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 247, 250 (1833) (“The [C]onstitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States.”).

14. In contradiction to the objectives of the Fourteenth Amendment, the Supreme Court held in United States v. Cruikshank that the Fourteenth Amendment did not incorporate the protections of the Bill of Rights into the states. Later jurisprudence in the 1930s corrected this misapplication of the Fourteenth Amendment. See United States v. Cruikshank, 92 U.S. 542, 549 (1875).

15. See Strauder v. West Virginia, 100 U.S. 303, 306–07 (1879) (holding that the Fourteenth Amendment “not only gave citizenship and the privileges of citizenship to persons of color, but [] denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.”).

16. Instead of a system based on chattel slavery, justification upon Black people came in the form of Jim Crow. See Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (1998) (a historical account of the Jim Crow South, detailing the experiences of Blacks in the South from the end of Reconstruction to the start of World War I).

17. See generally Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004) (discussing how systemic racism in the criminal legal system perpetuates structural inequities in health, education, and family stability in marginalized communities).

18. Court rules that were explicitly anti-Black have been systematically eliminated through landmark decisions and legislative reforms. See, e.g., Strauder, 100 U.S. 303 (striking down a state law excluding Black people from jury service, recognizing such exclusion as a violation of the Equal Protection Clause); Batson v. Kentucky, 476 U.S. 79, 84 (1986) (holding that a prosecutor’s use of peremptory challenges to strike all potential Black jurors from the venire (jury pool) violates the Equal Protection Clause of the Fourteenth Amendment).

19. See Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761, 1764 (1997) (“[T]he addition of the Reconstruction Amendments that formally acknowledged Black citizenship did not stop an official regime of segregation, disenfranchisement, and terror that practically reduced Blacks to their former status as slaves.”).

20. See Fed. R. Evid. 609.

21. See Michelle Alexander, The New Jim Crow, 9 Ohio St. J. Crim. L. 7, 8, 12–18 (2011) (explaining that the War on Drugs has disproportionately targeted Black communities, where drug arrests and convictions vastly exceed those of white communities despite similar rates of drug use and sales, resulting in “[m]illions of people of color [being] now saddled with criminal records and legally denied the very rights that were supposedly won in the Civil Rights Movement.”).

22. Beyond a reasonable doubt is the standard of proof required in criminal cases. See In re Winship, 397 U.S. 358, 364 (1970).

23. See Michelson v. United States, 335 U.S. 469, 475–76 (1948) (stating that evidence of a defendant’s prior misconduct or bad character is excluded in the prosecution’s case-in-chief because it risks unfair prejudice, overpersuading the jury, and denying the defendant a fair trial by focusing on character rather than the specific charge).

24. See 6 Mark S. Brodin, Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence: Commentaries on Rules of Evidence for the United States Courts, ch. T (2d ed., Matthew Bender 1997) (comparing the rules of evidence in each state to the federal rules).

25. See Fed. R. Evid. 101–1103.

26. Fed. R. Evid. 102.

27. Fed. R. Evid. 404(b)(1).

28. See Michelson, 335 U.S. at 475–76.

29. See id.

30. See id.; In re Winship, 397 U.S. at 364.

31. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477, 490–91 (2008) (discussing data showing that defendants without criminal records testify at much greater rates than those with records even if they are later factually proven to be innocent, and that, in almost all of the latter cases, “avoiding impeachment was the principal reason the defendant did not take the stand”).

32. This Article rejects the use of the word “tools” to describe the purpose of Rule 609. Here, I use the word “weapons” as opposed to the word “tools” (a term often used in other writings) because the expansion of criminal liability has been used to weaponize criminal statutes to further mass incarceration. See Fareed Nassor Hayat, Abolish Gang Statutes with the Power of the Thirteenth Amendment: Reparations for the People, 70 UCLA L. Rev. 1120, 1132–33 (2023) [hereinafter Hayat, Abolish Gang Statutes] (“Like its precursors, their weapon—the gang statute—gave ‘law enforcement’ the ability to monitor and occupy Black communities, arbitrarily criminalize Blackness, evade constitutional protection, monetize Black bodies, and punish beyond the strictures of law.”). Tools fix problems, while weapons are used to wage war, including unsuccessful ones like the war on drugs and the war on poverty.

33. See Alexander, supra note 21, at 7 (“The mass incarceration of poor people of color in the United States amounts to a new caste system—one specifically tailored to the political, economic, and social challenges of our time. It is the moral equivalent of Jim Crow.”).

34. See id. at 9 (arguing that issues such as crime and rising incarceration rates in poor communities of color are rooted in systemic poverty and lack of access to quality education, both of which are part of the enduring legacy of slavery and Jim Crow that has manifested in the modern system of mass incarceration targeting Black bodies); Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, U.S. Dep’t of Just.: Bureau of Just. Stats. (Aug. 2003), https://bjs.ojp.gov/content/pub/pdf/piusp01.pdf [https://perma.cc/45SD-ZKMG] (reporting that approximately one in three Black men born in 2001 are expected to be incarcerated at some point in their lifetime, while the same expectation for white men is only one in seventeen).

35. See generally Paul W. Grimm, Admissibility of Historical Cell Phone Location Evidence, 44 Litig. 53 (2018) (discussing the compelling nature and admissibility of cell phone location tracking information that is often used by law enforcement and prosecutors to secure convictions).

36. See Martin A. Dolan, Noreen C. Lennon & Karen Munoz, Use of Cell Phone Records and GPS Tracking, 24 CBA Rec. 38, 39 (2010). Triangulation determines a cell phone’s location by analyzing signals received from multiple cell phone towers, using mathematical calculations based on the known positions of at least two or three towers and the direction or timing of the signal received.

37. A Miranda statement refers to the constitutional warnings law enforcement must provide to criminal suspects in custody prior to interrogation, including the right to remain silent and the right to counsel. See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).

38. The prosecutor also understood that the defense attorney would lose the tactical advantage if he elected to call police officers in their case-in-chief.

39. Fred Warren’s familiarity and reliance on faces from his neighborhood has been described by psychologists as the “Butcher-on-the-Bus” phenomenon. Anne M. Cleary, That Nagging Feeling of Familiarity with a Face, Psych. Today (Aug. 15, 2012), https://www.psychologytoday.com/us/blog/quirks-memory/201208/nagging-feeling-familiarity-face [https://perma.cc/WQ6V-7ST5]. (arguing that the familiarity of a face evokes a sense of trust, even when the person’s name or exact relationship is unknown. The phenomenon is why recognizing someone from your surroundings, such as a neighborhood, can create comfort and reassurance in interactions).

40. See discussion infra Section I.A (tracking the evolution of the Sixth Amendment right to testify).

41. See U.S. Const. amend. XIII.

42. See Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 Colum. L. Rev. 973, 980–81 (2002) (defining chattel slavery as a legal regime where individuals are owned as property, stripped of autonomy, freedom of movement, and fundamental personal rights).

43. See Jack M. Balkin & Sanford Levinson, Panel I: Thirteenth Amendment in Context: The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459, 1462 (arguing that “at the time of the founding, the concept of ‘slavery’ was far broader than currently understood. ‘Chattel slavery’ was only the most extreme and visible example of ‘slavery,’ which meant illegitimate domination, political subordination, and the absence of republican government.”).

44. See U.S. Const. amend. XIII, § 2 (“Congress shall have power to enforce this article by appropriate legislation.”).

45. Civil Rights Cases, 109 U.S. 3, 20, 35 (1883) (“That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation, the Thirteenth Amendment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable.”).

46. See id.; see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–43 (1968).

47. See Jones, 392 U.S. at 441–43 (“For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery—its ‘burdens and disabilities’—included restraints upon ‘those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.’” (citing The Civil Rights Cases, 109 U.S. at 22)).

48. See discussion infra Sections II.A.3–4.

49. See discussion infra Section I.D.2.

50. See Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 524 (2015) (distinguishing between disparate-treatment cases, “where a ‘plaintiff must establish that the defendant had a discriminatory intent or motive,’” and disparate-impact claims, which “challenge[] practices that have a ‘disproportionately adverse effect on minorities’” (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009))).

51. See William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 58 (2004) [hereinafter Carter, A Thirteenth Amendment Framework] (“Because of the social structures that developed to support slavery, and have since been used to maintain social control over African Americans, ‘[B]lacks are defined as criminals and crime is defined as what black people do.’” (quoting Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945, 1960 (1993))).

52. The persistence of slavery-like conditions in the modern American criminal legal system is starkly illustrated by recent events in California. In November 2024, Californians voted on Proposition 6, a constitutional amendment aimed at eliminating involuntary servitude for incarcerated people. Shockingly, nearly 5 million voters in this purportedly liberal state rejected the measure. The proposition sought to remove language from the state Constitution that allows involuntary servitude as punishment for crime, a provision that has enabled prisons to compel inmates to work for minimal or no compensation. Simultaneously, California passed Proposition 36, which introduced harsher penalties for certain theft and drug offenses, potentially increasing incarceration rates and sentence lengths. See Trân Nguyễn & Sophie Austin, California Voters Pass Initiative to Make Some Shoplifting and Drug Offenses Felonies, Associated Press (Nov. 6, 2024, at 12:59 EST), https://apnews.com/article/california-ballot-propositions-2024-election-7e6c94f6d4d1f5660af1e4f326bd03ff [https://perma.cc/ET84-LPBJ].

53. See Jeffrey Bellin, Eliminating Rule 609 to Provide a Fair Opportunity to Defend Against Criminal Charges: A Proposal to the Advisory Committee on the Federal Rules of Evidence, 92 Fordham L. Rev. 2471 (2024).

54. Black Codes were laws enacted in the post-Civil War South to control and oppress newly freed Black individuals by restricting their mobility, economic opportunities, and personal autonomy, effectively maintaining slavery “in everything but name.” Hayat, Abolish Gang Statutes, supra note 32, at 1150–51 (citing Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 41–42 (1990)).

55. See generally Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C. L. Rev. 563 (2014) (describing the failures of drafters, courts, and commentators to scrutinize Federal Rule of Evidence 609).

56. See George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J. 575, 658 (1997) (exploring the breakdown of rules preventing criminal defendants from testifying under oath); see also Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 Yale L.J. 109, 120 (1998) (analyzing “surviving trial records . . . for [] sixty-eight cases of racial determination appealed to state supreme courts in the nineteenth-century South.”).

57. White supremacy is pervasive. White people, specifically the poor, are too victims of the harms caused by the chattel slave system. As discussed infra, white criminal defendants are impacted by the use of criminal conviction and thus can seek redress under the Thirteenth Amendment, Section Two, where their silencing reinforce slavery era subjugation.

58. See Act for the Better Ordering and Governing of Negroes and Other Slaves in this Province, No. 670, § 13 (1740), reprinted in 7 David J. McCord, Statutes At Large of South Carolina 401 (1840) (“[F]or the preventing [of] the concealment of crimes and offences committed by slaves, and for the more effectual discovery and brining slaves to condign punishment, . . . the evidence of any slave, without oath, shall be allowed and admitted in all causes whatsoever; the weight of which evidence being seriously considered, and compared with all other circumstances attending the case, shall be left to the conscience of the justices and freeholders.”).

59. Id.

60. White supremacy in the legal system was not merely a tool of racial hatred; it was a carefully designed structure to maintain economic and political dominance. See James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465, 1525 (2019) (noting that even after the Civil War, many “white supremacist state governments [were] founded on denying African Americans the rights to vote, participate on juries, serve as attorneys and judges, and engage in self-organization”); id. at 1553 (“[W]hite supremacist regimes incarcerated African American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge.”). The continued exclusion of Black voices from legal processes—whether through outright testimonial bans in the past or systemic criminalization today—has served to maintain a racialized caste system that profits from Black economic disenfranchisement.

61. White power, much like white supremacy, is not limited to white oppression of Black people. Blacks, like in the case of Fred Warren, can too perpetuate white power. Poor whites, much like Blacks in a position of power can perpetuate white supremacy. White supremacy maintains economic exploitation of non-land holding individuals for the benefit of the privileged.

62. Without the ability to testify, Blacks could not contest fraudulent contracts, reclaim stolen wages, assert property rights, or otherwise advocate for their rights in any capacity.

63. State v. Belmont, 35 S.C.L. (4 Strob.) 445, 448 (1847).

64. See Dan Biddle, Ohio’s “Black Laws”, Equal Just. Initiative (Apr. 1, 2025), https://eji.org/news/ohios-black-laws [https://perma.cc/3HEG-W2SA].

65. Avins, supra note 11, at 477 (noting that Virginia “held that a mulatto with less than one-quarter of Negro blood could testify against a white person” (citing Dean v. Commonwealth, 45 Va. (4 Gratt.) 541 (1847))).

66. Dupree v. State, 33 Ala. 380, 388 (1859). The sentiments of Dupree’s 1859 holding are still alive and well today. See Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). President Trump’s Executive Order 14,160 seeks to end birthright citizenship for children of non-citizens, much like the limitation on testimony of descendants of the enslaved, sparking legal challenges. When interviewed by The Guardian, Professor Erwin Chemerinsky stated: “A stunning number of [Trump’s] executive actions clearly violate the constitution and federal law[.] . . . I cannot think of any president who has ever so ignored the constitution as extensively in the first 10 days of office as this.” Steven Greenhouse, Trump’s disregard for US constitution ‘a blitzkrieg on the law,’ legal experts say, The Guardian (Feb. 1, 2025, 08:00EST), https://www.theguardian.com/us-news/2025/feb/01/trump-executive-orders-constitution-law [https://perma.cc/5Q87-7UDA].

67. Heath v. State, 34 Ala. 250, 251–52 (1859).

68. See The Crime of Testimony Laws, ACLU of N. Cal.: Gold Chains, The Hidden History of Slavery in California, https://www.aclunc.org/sites/goldchains/explore/george-gordon.html [https://perma.cc/BDV8-ZZ7Z] (last visited Sep. 27, 2025).

69. Law of Apr. 16, 1850, ch. 99, § 14, 1850 Cal. Stat. 230 (“No [B]lack or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person. Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one-half of Indian blood shall be deemed an Indian.”); Law of Apr. 16, 1850, ch. 99, § 14, 1850 Cal. Stat. 230 (“No [B]lack or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person. Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one-half of Indian blood shall be deemed an Indian.”).

70. See The Crime of Testimony Laws, supra note 68.

71. See id.

72. See White v. Helmes, 12 S.C.L. (1 McCord) 430, 435 (S.C. Const. App. 1821).

73. Id. at 435–36 (“When we consider the degraded state in which they are placed by the laws of the state, and the ignorance in which most of them are reared, it would be unreasonable as well as impolitic to lay it down as a general rule that they were competent witnesses.”).

74. See Pilie v. Lalande, 7 Mart. (n.s.) 648, 649 (La. 1829).

75. See Texas Passes Law Restricting Black People from Testifying in Court Proceedings, Equal Just. Initiative: A History of Racial Injustice, https://calendar.eji.org/racial-injustice/oct/26 [https://perma.cc/9TF4-98RW] (last visited Sep. 27, 2025).

76. U.S. Const. amend. VI.

77. Act of Mar. 16, 1878, ch. 37, 20 Stat. 30 (then codified at 18 U.S.C. § 632 (1948), modified and now codified at 18 U.S.C. § 3481) (“[I]n the trial . . . the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.”).

78. See generally Fisher, supra note 56, at 658 (explaining that competency rules barring civil parties from testifying fell in the North before the South, setting the stage for Northern states to also permit criminal defendants to testify).

79. Louis M. Holscher, The Legacy of Rock v. Arkansas: Protecting Criminal Defendants’ Right to Testify in Their Own Behalf, 19 New Eng. J. on Crim. & Civ. Confinement 223, 226–37 (1993).

80. Fisher, supra note 56, at 662–71.

81. Id. at 674; but see supra note 14 (noting that the Supreme Court paused the incorporation in Cruikshank).

82. Fisher, supra note 56, at 675.

83. Id. at 676 (explaining that Sumner’s successful amendments prohibited the “exclusion of any witness on account of color” in any judicial proceeding in the District of Columbia (quoting Cong. Globe, 37th Cong., 2d Sess. 3138 (1862))); see Earl M. Maltz, The Concept of Incorporation, 33 U. Rich. L. Rev. 525, 526 (1999) (“Charles Sumner of Massachusetts repeatedly introduced bills that would not only have barred racial discrimination in the selection of jurors, but would also have outlawed racial segregation by public schools, common carriers, innkeepers, owners of theaters, and churches.”).

84. Fisher, supra note 56, at 684 (“Only four Southern states—Arkansas, Louisiana, South Carolina, and Tennessee—removed all distinctions of color from the qualification of witnesses during the 1860s. Each of the rest granted [B]lacks the right to testify only in those cases in which a [B]lack person was a party or, in a criminal case, the victim.”) (citation omitted).

85. See Blyew v. United States, 80 U.S. (13 Wall.) 581, 601 (1871) (Bradley, J., dissenting) (arguing that Congress sought to eliminate the “incidents and consequences of slavery” and instead establish “civil liberty and equality,” recognizing that “[m]erely striking off the fetters of the slave” was insufficient to address the prolonged repression of Black Americans and ensure their “full enjoyment” of civil rights).

86. Fisher, supra note 56, at 675–76 (“The North proved to be intensely sensitive to the charge of hypocrisy, whether made by Southern forces or, as was often the case, from within its own ranks. It chose to abandon the last of its old competency rules rather than to bear the risk of that accusation.”).

87. See id. at 675.

88. Id.

89. Id. at 694.

90. Several Southern state legislatures replaced general rules preventing testimony out of “fear that freedmen, now made competent to testify under Northern pressure, might testify against whites who were barred from testifying under the old competency rules.” Id. at 695. For example, South Carolina “eliminated entirely the common law bar against the testimony of interested persons, civil parties, and criminal defendants.” Id.

91. Id. at 668 (citing Ferguson v. Georgia, 365 U.S. 570, 577 n.6 (1961)).

92. Other reasons contributed to Maine becoming the first state to provide criminal defendants the right to testify. Specifically, Chief Justice John Appleton, of the Supreme Court of Maine, became the leading voice to advocate for the competency of parties, both civil and criminal, to testify. See Robert Popper, History and Development of the Accused’s Right to Testify, 1962 Wash. U. L. Q. 454, 457 (1962).

93. McVeigh v. United States, 78 U.S. (11 Wall.) 259, 267 (1870).

94. Rock v. Arkansas, 483 U.S. 44, 51 (1987) (noting that “[t]he right to testify on one’s own behalf at a criminal trial” is secured by “the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law” (citing In re Oliver, 333 U.S. 257, 273 (1948))); see Ferguson, 365 U.S. at 577 (“Before the end of the [nineteenth] century every State except Georgia had abolished the disqualification” preventing criminal defendants from giving sworn evidence.).

95. Rock, 483 U.S. at 47 (“[The prosecutor] filed a motion to exclude [the defendant’s] testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner’s testimony to ‘matters remembered and stated to the examiner prior to being placed under hypnosis.’”).

96. Id. at 48 (“On appeal, the Supreme Court of Arkansas rejected petitioner’s claim that the limitations on her testimony violated her right to present her defense.”).

97. Id. at 48–49 (“The [appellate] court concluded that ‘the dangers of admitting this kind of testimony outweigh whatever probative value it may have,’ and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se.”).

98. Id. at 49.

99. Id. at 50 (“[P]ermitting a defendant to testify advances both the ‘detection of guilt’ and ‘the protection of innocence.’” (citing Ferguson, 365 U.S. at 581)).

100. Id. at 51–56.

101. Id. at 55–56

102. See McVeigh, 78 U.S. at 267.

103. Blyew, 80 U.S. at 581.

104. Id. at 601.

105. Id. at 588–89.

106. Id. at 601. Recall that Section Two of the Thirteenth Amendment empowers both the Supreme Court and Congress to reject laws that further the aims of the institution of chattel slavery. See Hayat, Abolish Gang Statutes, supra note 32, at 1140–47. See generally William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1319 (2007) (arguing that while Congress is often better positioned to define and redress badges and incidents of slavery, courts also retain concurrent authority to interpret and enforce the Thirteenth Amendment). Enforcement of the Thirteenth Amendment extends beyond Congress and includes the primary enforcer of the Constitution: the Supreme Court. Id.

107. Blyew, 80 U.S. at 601; see also Robert D. Goldstein, Blyew: Variations on a Jurisdictional Theme, 41 Stan. L. Rev. 469, 483 (1989).

108. Holscher, supra note 79, at 227; see Fisher, supra note 56, at 681 (“[C]riminal defendants would not win the right to testify under oath in federal courts until 1878.” (citing Act of Mar. 16, 1878, ch. 37, 20 Stat. 30 (codified at 18 U.S.C. § 3481 (1994)))).

109. Rock, 483 U.S. at 50.

110. See discussion infra Section II.

111. See generally Robert D. Dodson, What Went Wrong with Federal Rule of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence, 48 Drake L. Rev. 1, 2–3, 49 (1999) (noting that while defendants are entitled to jury instructions stating that prior convictions should be considered solely for impeachment purposes, “such limiting instructions are not likely to have any effect on jurors” because the jurors will likely not understand them and “will consider the evidence for improper purposes,” resulting in unfair prejudice that discourages many defendants from testifying); see id. at 3 n.14 (arguing that “a jury is likely to consider the evidence in determining the guilt as well as credibility” despite a jury instruction against such misuse of the evidence (citing Michael R. Fontham, Trial Technique & Evidence § 7-27 (1995))).

112. See id. at 2–3.

113. Id. at 4–5 (citing Luck v. United States, 348 F.2d 763, 768 (D.C. Cir. 1965)).

114. Luck, 348 F.2d at 768.

115. Id.

116. Id. at 769.

117. Dodson, supra note 111, at 5 (“Section 14-305 of the District of Columbia Code mandates that all prior conviction evidence be admitted for impeachment purposes.” (citing D.C. Code Ann. § 14-305 (West 1970))).

118. Id. at 5–6 (citing Preliminary Draft of Proposed Rules of Evidence for United States District Courts and Magistrates, 46 F.R.D. 161, 295–96, 296–99 advisory committee’s notes (1969)).

119. Id. at 5–12 (“After hearing criticism on the initial draft, a second version of Rule 609(a) was completed in 1971. The second draft was essentially the same as the first draft, but it specifically incorporated the Luck doctrine and allowed courts discretion to exclude otherwise admissible prior conviction evidence if ‘the judge determines that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.’ Following the second draft of the FRE and Rule 609, the drafters received more criticism. The drafters eventually submitted a draft of Rule 609 to Congress which did not incorporate the Luck doctrine and provided for no discretionary review of prior conviction evidence by trial judges. After debate and substantial revision in the House Judiciary Committee, a version of Rule 609 was drafted which allowed impeachment with prior convictions ‘only if the crime involved dishonesty or false statement.’”).

120. Id. at 12.

121. The War on Drugs, began in 1971 when President Richard Nixon created policy that led to mass imprisonment and unfair targeting of Black communities. Nixon’s policy advisor, John Ehrlichman, admitted that they deliberately associated Black Americans with heroin to justify strict policing. Michelle Alexander has documented this phenomenon. (e.g., 100:1 crack/powder cocaine disparities) and collateral consequences like voting bans. Between 1975 and 2019, the U.S. prison population quintupled, with Black men incarcerated at thirteen times the rate of white men for drug offenses for the similar drug use habits and substance. This systemic unfairness instituted what Alexander framed as “the New Jim Crow,” perpetuating cycles of disenfranchisement and poverty. 50-Year War on Drugs Imprisoned Millions of Black Americans, PBS: NewsHour (July 26, 2021, 12:55 EDT), https://www.pbs.org/newshour/nation/50-year-war-on-drugs-imprisoned-millions-of-black-americans [https://perma.cc/BRS6-UAF6]; see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 6 (The New Press, 10th ed. 2012).

122. 120 Cong. Rec. 2380 (1974) (statement of Rep. Lawrence J. Hogan) (arguing that prior convictions should be admissible to impeach witnesses, asserting that “thief or perjurer is unworthy of belief” and emphasizing the need to prevent defendants with criminal records from appearing credible).

123. Id. at 37076 (arguing that prior felony convictions should automatically impeach a witness’s credibility, asserting that restricting such evidence “erroneous[ly]” prioritized defendants’ interests over truth-seeking).

124. Id.; see also Bellin, supra note 53, at 2477 (highlighting Lawrence Hogan as part of the House of Representative efforts that were in line with McClellan: “The chief proponents of prior conviction impeachment, Representative Lawrence Hogan (Maryland) and Senator John McLellan (Arkansas) waged extensive floor battles to preserve the practice. In the House, Hogan argued that there were two kinds of people: those with criminal records (‘antisocial’) and those without (‘law-abiding citizens’). He asked: ‘Should a witness with an antisocial background be allowed to stand on the same basis of believability before juries as law-abiding citizens with unblemished records? I think not.’ Later he expanded on this worldview, contending on the House floor: ‘You simply cannot get away from the fact that, if a thief or perjurer is unworthy of belief, one might be even less inclined to believe a murderer, or assassin, or drug trafficker, or white slaver, or saboteur, or what have you.’”).

125. See, e.g., 120 Cong. Rec. 37076–77 (1974) (Statement of Sen. Hruska) (“[T]he triers of fact have a need for all the relevant evidence that will assist them in judging the credibility of a witness. One of these pieces of evidence is the fact that the defendant has been convicted of prior felonies.”). Senator Robert C. Byrd (D-W⁠.⁠Va.), like McClellan, had a long history of pro-segregation and white supremacist views. Byrd, who was a member and local leader of the Ku Klux Klan in the 1940s, filibustered the Civil Rights Act of 1964 for 14 hours. Other senators with similar backgrounds who joined this effort included John C. Stennis (D-Miss.), J. William Fulbright (D-Ark.), and George Smathers (D-Fla.). These senators, along with McClellan, were instrumental in shaping the “tough on crime” wave of the 1960s and 1970s. While Byrd and others claimed to renounce their racist pasts, critics argue that they merely abandoned overtly discriminatory language while maintaining policies with discriminatory effects. See generally Burton Ira Kaufman, The Carter Years (2006) (detailing Senator Byrd’s tenure, his legislative influence, and his complex relationship with the Carter administration).

126. See Hayat, Abolish Gang Statutes, supra note 32; see also infra note 141 and accompanying text.

127. See generally Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. Crim. L. & Criminology 775 (1999) (describing vagrancy laws passed by most Southern states during the Jim Crow era as part of a regime of official white supremacy). Together these men advocated for and knowingly implemented a series of legal weapons built on Slave Codes, post-Civil War Black Codes, Jim Crow-era vagrancy laws, and gang injunctions, in order to control and subjugate Black and Brown people back to the condition of slave.

128. McClellan, John Little, Biographical Directory of the U.S. Cong., https://bioguide.congress.gov/search/bio/M000332 [https://perma.cc/ZDH7-YDZM] (last visited Sep. 27, 2025).

129. Id.

130. See David E. Rosenbaum, John L. McClellan, 35 Years in the Senate, Dead at 81; Headed Major Investigations, N.Y. Times, Nov. 29, 1977, at 40.

131. Wendy Richter, John Little McClellan (1896–1977), The Encyclopedia of Ark. (July 3, 2025), https://encyclopediaofarkansas.net/entries/john-little-mcclellan-1708 [https://perma.cc/KK8G-CJTX].

132. See Rosenbaum, supra note 130, at 243. See generally Sherry Laymon, Fearless: John L McClellan, United States Senator (Tate Publ’g & Enter., LLC ed. 2011) (explaining Senator McClellan’s senatorial career and his contributions as the Senate’s leading investigator exposing mafia activity among other things). Senator McClellan has stated that “[t]he further we go in loosening up the laws, the more and more crime increases. Will we never learn? Everything today is being done to find some way to protect the criminal, while society is forgotten.” 120 Cong. Rec. 37081 (1974).

133. 75 Cong. Rec. 3518–63 (1937).

134. Id. at 3519–20.

135. Id. at 3545 (Statement of Sen. McClellan).

136. Id.

137. 115 Cong. Rec. 5872 (1969); see Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922; see also Fareed Nassor Hayat, Two Bites at the Apple: Requiring Double Jeopardy Protection in Gang Cases, 73 Rutgers L. Rev. 1463, 1486 (2021) [hereinafter Hayat, Double Jeopardy Protection in Gang Cases].

138. See Adam Nagourney, In Tapes, Nixon Rails About Jews and Blacks, N.Y. Times (Dec. 10, 2010) https://www.nytimes.com/2010/12/11/us/politics/11nixon.html [https://perma.cc/9QGP-ZW7N] (“Nixon Made disparaging remarks about Jews, blacks, Italian-Americans and Irish-Americans in a series of extended conversations with top aides and his personal secretary, recorded in the Oval Office 16 months before he resigned as president.”). See generally A. Cheree Carlson, Whiteness of a Darker Shade: Reclassifying Italian-Americans in the Trials of Maria Barbella, 85 W. J. Comm. 528 (2020) (analyzing how the trial of Maria Barbella, a young Italian immigrant accused of murder in the late 19th century, served as a crucial moment in the reclassification of Italian Americans as “white” within the United States racial hierarchy).

139. 115 Cong. Rec. 5873 (1969).

140. Id. at 5883.

141. Hayat, Abolish Gang Statutes, supra note 32, at 1151 (noting that the evolution from Black Codes to gang statutes illustrates the ways in which legal mechanisms have been repeatedly repurposed to criminalize Black existence and maintain systemic racial control).

142. In 1970, Congress passed the Racketeer Influenced and Corrupt Organizations Act (“RICO”) initially aimed at dismantling Mafia organizations. However, its broad application soon extended beyond organized crime to disproportionately target racial minorities and marginalized communities. The legislative intent behind RICO’s expansion into gang statutes was rooted in a broader agenda of controlling Black and Brown communities, perpetuating a racial hierarchy within the justice system. See Hayat, Double Jeopardy Protection in Gang Cases, supra note 137, at 1485–87.

143. See generally Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that state laws establishing segregated public schools are unconstitutional because “separate but equal” violates the Equal Protection Clause of the Fourteenth Amendment).

144. Despite being absent and thus abstaining from voting, a statement by McClellan was read into the congressional record in which he criticized Marshall for his beliefs that aligned with several Supreme Court Justices who “aim[ed for] the establishment of more and more individual rights for the criminal suspect.” 113 Cong. Rec. 24645 (1967) (Statement of Sen. McClellan). McClellan claimed that “the crime menace is today the greatest internal threat to our Nation’s security. . . . Accompanying this rising crime rate is a corresponding decline of respect for law and authority. It is my belief that a majority of the Supreme Court has materially contributed to the current lawless trend by going far astray in their interpretation and application of the Constitution in recent decisions that have favored the criminal to the injury of society.” Id.

145. See Juan Williams, Thurgood Marshall: American Revolutionary 337 (Crown Publ’g ed. 1998).

146. See Willie J. Epps, Jr., The Jackie Robinsons of the Federal Judiciary: Examining the Appointment of the First Black Federal Judges, 22 U. Md. L.J. Race, Religion, Gender & Class 228, 253 (2022).

147. Id. at 271.

148. Id.

149. Hearing on Equality of Educational Opportunity Before the Select Comm. on Equal Educ. Opportunity, 91st Cong. 136 (1970) (Statement of Sen. McClellan).

150. Id.

151. 117 Cong. Rec. 33642–45 (1971) (letter from Sen. McClellan to Judge Albert B. Maris, Chairman, Comm. on Rules of Prac. & Proc. (Aug. 12, 1971)).

152. See Strand v. McDonald, No. 12-cv-1237, 2013 WL 5755059, at *4 (E.D. Cal. Oct. 23, 2013) (where a juror testified that the “defendant’s failure to testify was mentioned between six and twelve times during jury deliberations, by as many as half of the jurors. About one-quarter to one-third of the remarks included the view that ‘if [defendant] was innocent he would have testified.’”).

153. See Naomi Murakawa, The Racial Antecedents to Federal Sentencing Guidelines: How Congress Judged the Judges from Brown to Booker, 11 Roger Williams U. L. Rev. 473, 489 (2006) (detailing McClellan’s post-Brown legislative efforts to link civil rights advancements to crime rates and limit judicial discretion in sentencing); see also Vesla M. Weaver, Frontlash: Race and the Development of Punitive Crime Policy, 21 Stud. Am. Pol’y. Dev. 230, 235–37 (2007) (analyzing McClellan’s role in framing crime policy through racial anxiety).

154. See Keturah James & Ayana Jordan, The Opioid Crisis in Black Communities, 46 J.L. Med. & Ethics 404, 410 (2018) (“In response to the heroin epidemic that began in the 1960s, in 1973 New York passed legislation mandating extremely severe prison terms for possession or sale of relatively small amounts of drugs.”); see also Joseph Gfroerer & Marc Brodsky, The Incidence of Illicit Drug Use in the United States, 1962−1989, 87 Brit. J. Addiction 1345 (1992), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1360-0443.1992.tb02743.x [https://perma.cc/2TMJ-B2L3] (showing that the incidence of illicit drug use, including marijuana and cocaine, began rising in the late 1960s).

155. Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922 (codified as amended in scattered sections of 18 U.S.C. §§ 1961–1968).

156. S. 1035, 95th Cong. (1977) (a bill to amend the Bail Reform Act of 1966 to provide for pretrial detention of certain dangerous persons) (“Permits judicial officers to detain for up to ten days any person appearing for a bail determination if it appears that such person is presently on probation, parole, or mandatory release pending completion of sentence for any offense under State or Federal law and that such person may flee or pose a danger to any other person or the community if released. . . . Imposes additional penalties for commission of crimes while on release. Specifies sanctions for violation of release conditions.”). The bill was co-sponsored by Senator John L. McClellan. Id. The Bail Reform Act, for the first time in American history made it constitutional to hold a criminal defendant pre-trial absent a finding of proof beyond a reasonable doubt for the possibility of future crimes. See United States v. Salerno, 481 U.S. 739, 760 (1987) (Marshall, J. dissenting) (“This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future.”).

157. S. 260, 95th Cong. (1977) (a bill to amend Title 18, United States Code, so as to impose mandatory minimum terms with respect to certain offenses) (requiring mandatory minimum sentences of at least two years for certain burglary, aggravated assault, and firearm-related convictions, specific mandatory sentences for heroin-related crimes, and enhanced penalties for repeat federal offenders). The bill was co-sponsored by Senator John L. McClellan. Id.

158. Murakawa, supra note 153, at 485, 493.

159. See Montre D. Carodine, The Mis-Characterization of the Negro: A Race Critique of the Prior Conviction Impeachment Rule, 84 Ind. L.J. 521, 538–39 (2009) (noting that “only one state, Montana, prohibits completely the use of prior convictions of any type to impeach,” while “[t]wenty-five states have adopted Rule 609, almost to the letter,” and “twelve states have adopted a less restrictive version of Rule 609.” The article further explains that “[f]our states only allow impeachment with convictions involving dishonesty or false statements,” and “[f]ive other states permit impeachment with felonies only.”).

160. Id. at 544. For context, an understanding of the history of the senators who joined McClellan in his legislative agenda illuminates his racist intention. Specifically, Senator Herman Talmadge of Georgia was a staunch segregationist who opposed Black voting rights and civil rights laws. As governor, he promoted white supremacy, appointed Klu Klux Klan members to office, resisted school integration after Brown v. Board, and sought to disenfranchise African Americans. He opposed the 1964 Civil Rights Act. Strom Thurmond, a longtime South Carolina U.S. Senator, was a staunch segregationist who ran for president as a Dixiecrat in 1948. He filibustered the 1957 Civil Rights Act, signed the Southern Manifesto, opposed Thurgood Marshall’s nomination, and later switched to the Republican Party. See Segregation in America, Equal Just. Initiative, https://segregationinamerica.eji.org/segregationists [https://perma.cc/FYE6-LY3C] (last visited July 14, 2025).

161. Carodine, supra note 159, at 544.

162. Id. (citing 120 Cong. Rec. 37075–76 (1974)).

163. Id. (citing 120 Cong. Rec. 37076 (1974)).

164. The invocation of rape and murder in Senator McClellan’s rhetoric aligns with the historical myth of the Black rapist, a deeply entrenched construct used to justify racialized violence and systemic oppression. This myth, which portrays Black men as inherently violent and sexually predatory, emerged during Reconstruction and was perpetuated through lynching, legal discrimination, and cultural narratives that cast Black men as threats to white womanhood. By focusing on crimes like rape and murder—offenses historically weaponized against Black men to legitimize their persecution—McClellan’s argument taps into these racist stereotypes to manipulate public perception. This rhetorical strategy not only reinforces biases against defendants but also perpetuates the broader mythology of Black criminality, ensuring that even minor offenses are viewed through a lens of moral condemnation and distrust. Such framing echoes the historical use of these myths to police and control marginalized communities, as seen in cases like the Scottsboro Boys or Emmett Till, where accusations of rape or violence were wielded as tools of racial subjugation. See generally Angela Y. Davis, Rape, Racism and the Myth of the Black Rapist 186–87 (Vintage Books 1st ed. 1983) (discussing the historical construction of racialized myths about Black men and sexual violence).

165. U.S. Const. amend. XIII, § 1.

166. The fact that this current Supreme Court, composed of six conservatives, is unlikely to adopt a broad reading of the Thirteenth Amendment, this author and Afrofuturists alike, understand and envision an America where its courts will one day provide empowerment and liberation. Afrofuturists are not limited to what is, rather they reclaim history and imagine liberated futures, weaving the African diaspora’s struggles and aspirations through speculative media, grounded in pivotal scholarship. See generally Delan Bruce, Afrofuturism: From the Past to the Living Present, UCLA Mag. (Sep. 3, 2020), https://newsroom.ucla.edu/magazine/afrofuturism [https://perma.cc/UTL5-48GR] (discussing Afrofuturism as a framework for reimagining Black futures through speculative media and history).

167. Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 Temp. L. Rev. 539, 542 (2002) (quoting Jones, 392 U.S. at 441); id. at 580 (arguing that Congress sought to eliminate the “incidents and consequences of slavery” and instead establish “civil liberty and equality,” recognizing that “merely striking off the fetters of the slaver” was insufficient to address the prolonged repression of Black Americans and ensure their “full enjoyment” of civil rights (quoting Blyew, 80 U.S. at 601)).

168. Tsesis, supra note 167, at 542–43.

169. See United States v. Kozminski, 487 U.S. 931, 944 (1988) (finding that “[t]he guarantee of freedom from involuntary servitude has never been interpreted specifically to prohibit compulsion of labor by other means, such as psychological coercion”).

170. See Balkin & Levinson, supra note 43, at 1498 (arguing that the Thirteenth Amendment reaches beyond chattel slavery, empowering Congress to dismantle racial, economic, and social systems of domination and inequality).

171. Rebecca E. Zietlow, James Ashley’s Thirteenth Amendment, 112 Colum. L. Rev. 1697, 1708 (2012) (noting that Congress and the Court have upheld the Thirteenth Amendment’s reach to address the “badges or incidents” of slavery).

172. See generally Balkin & Levinson, supra note 43, at 1498 (concluding that the Amendment’s language, history, and structural role in the Constitution make it a powerful tool for addressing not only chattel slavery but all systems of social and economic subordination rooted in the same logic of domination).

173. Nw. Ordinance of 1787, art. VI, 1 Stat. 51 n.(a) (“There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted . . . .”).

174. See Zietlow, supra note 171, at 1708.

175. See Balkin & Levinson, supra note 43, at 1493 n.163 (“describing various comparisons suffragists made between married women and slaves, including ‘civil death’ that both slaves and married women suffered” (citing 2 The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony 178 (Ann D. Gordon ed., Rutgers Univ. Press 2000))); see also Nancy Isenberg, Sex and Citizenship in Antebellum America 107–08 (1998).

176. Zietlow, supra note 171, at 1698.

177. Id.

178. See id.

179. Rebecca E. Zietlow, The Ideological Origins of the Thirteenth Amendment, 49 Hous. L. Rev. 393, 412 n.151 (2012) (“If the national Constitution had been rightfully interpreted . . . , slavery could not have existed in this country for a single hour . . . . Only because the fundamental principles of the Government have been persistently violated . . . is it necessary to-day to pass the amendment now under consideration.” (citing Cong. Globe, 38th Cong., 2d Sess. 138 (1865))); James M. Ashley, Closing Portion of Stump Speech Delivered in the Grove near Montpelier, Williams County, Ohio (Sep. 1856), in Duplicate Copy of the Souvenir from the Afro-American League of Tennessee to Hon. James M. Ashley of Ohio 601, 616 (Benjamin Arnett ed., Publ’g House of the A.M.E. Church 1894) (“If this can be done in no other way, it will become our duty to amend our national Constitution . . . .”).

180. See Bruce Levine, Thaddeus Stevens: Civil War Revolutionary, Fighter for Racial Justice 5 (Unabridged ed. 2021).

181. Id.

182. See Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 693–94 (1988) [hereinafter Foner, Reconstruction] (noting Sumner proposed civil rights measure that would have given Black people equal access to churches, public accommodations, jury service, public schools, and cemeteries).

183. Id.

184. Id.

185. Id. at 694.

186. See Jennifer Mason McAward, Defining the Badges and Incidents of Slavery, 14 U. Pa. J. Const. L. 561, 624 (2012).

187. Carter, supra note 106, at 1319 (arguing that both Congress and the Supreme Court can enforce the Thirteenth Amendment).

188. See Civil Rights Cases, 109 U.S. at 3.

189. Id. at 20 (emphasis added).

190. See McAward, supra note 186, at 570.

191. Id. at 571.

192. Id. at 570–71 (quoting Bouvier’s Law Dictionary 617 (7th ed. 1857)).

193. Id. at 575.

194. Id. at 573.

195. Nicholas Serafin, Redefining the Badges of Slavery, 56 U. Rich. L. Rev. 1291, 1311–1317 (2022).

196. Id. (arguing for a historically grounded, evolving framework to define “badges and incidents of slavery” as laws or customs imposing stigmatic harm on subordinate groups, rooted in Greco-Roman practices of marking the enslaved and emphasizing Congress’s power to dismantle racial subordination, Professor Serafin contends that the Thirteenth Amendment can address structural racism).

197. McAward, supra note 186, at 575.

198. Id. at 577–78.

199. Id. at 578 (quoting Cong. Globe, 39th Cong., 1st Sess. 474 (1866)).

200. This is not hyperbole. The aim and intent behind these statutes is discussed above, but when a certain result is the natural and probable consequence of one’s deliberate and knowing actions, the law must infer an intent or aim to cause said result. See discussion infra Section I.D.2.

201. Carter, supra note 106, at 1318.

202. Id.

203. Id.

204. See id. at 1373.

205. Carter, supra note 51, at 17.

206. Civil Rights Cases, 109 U.S. at 21.

207. Id. at 16.

208. Id.

209. Id. at 24 (holding that a private individual refusing to accommodate another “has nothing to do with slavery or involuntary servitude”).

210. See Jones, 392 U.S. at 443.

211. Id. at 412 (considering the scope and constitutionality of 42 U.S.C. § 1982, which states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” (citing 42 U.S.C. § 1982)).

212. Id. at 421–22 (holding that the prohibitions of 42 U.S.C. § 1982 “encompass every racially motivated refusal to sell or rent”).

213. Id. at 423–24, 438–39.

214. Id. at 440.

215. Id. at 443.

216. Id. at 438–39, 441–43 (holding that badges and incidents of slavery include restrictions on the ability “to inherit, purchase, lease, sell and convey property” caused by racial discrimination based on “the color of [one’s] skin.” (quoting Civil Rights Cases, 109 U.S. 3, 22 (1883))).

217. Id. at 439 (citing Cong. Globe, 39th Cong., 1st Sess. 113, 318, 476, 499, 507, 576, 600–01).

218. Id. at 440.

219. Id. at 439.

220. United States v. Hatch, 722 F.3d 1193, 1201 (10th Cir. 2013).

221. Id. at 1195, 1201–04 (“Hatch believes that the Jones approach to the Thirteenth Amendment . . . creates a constitutional loophole through which Congress can enact all sorts of otherwise impermissible police power legislation.”).

222. Id. at 1201.

223. Id. at 1204.

224. United States v. Cannon, 750 F.3d 492, 502–03 (5th Cir. 2014).

225. Id. at 494–96.

226. Id. at 497.

227. Id. at 502.

228. See generally Zamir Ben-Dan, Slavery’s Constitutional Endurance: The Antebellum States’ Rights Principle, 105 B.U. L. Rev. 163 (2025) (arguing that slavery’s legacy through the states’ rights doctrine, continues to legitimize state violence against Black people, including killings, through both implicit norms and structural power).

229. See Vincent M. Bonventre, 6 to 3: The Impact of the Supreme Court’s Conservative Super-Majority, N.Y. St. Bar Ass’n (Oct. 31, 2023), https://nysba.org/6-to-3-the-impact-of-the-supreme-courts-conservative-super-majority [https://perma.cc/MR4X-XEET] (last visited Sep. 28, 2025).

230. See id.; see also Joan Biskupic, Supreme Court Justices Are Showing Their Willingness to Boost Conservative Causes, CNN Pol. (Jan. 18, 2023, at 05:01 EST), https://www.cnn.com/2023/01/18/politics/supreme-court-conservative-politics-analysis/index.html [https://perma.cc/5J3W-9TQQ].

231. Hatch, 722 F.3d at 1202.

232. See Vicki C. Jackson, Exclusionary Originalism as Anti-Constitutionalist: Dobbs and Bruen as Threats to Constitutionalism, 18 Harv. L. & Pol’y Rev. 221, 223–24 (2024) (discussing the weaponization of originalist arguments by the Court to enforce the second-class citizenship of Black people and women). Spherically, the Supreme Court regularly practices “exclusionary originalism” by confining judicial interpretations to a time and place where more than half the population did not share many of the rights held by property-owning white men does not live up to the intent of the Constitution itself and, instead, “lack[s] a defensible foundation in constitutional values and principles, including republican democracy, the rule of law, liberty, equality, justice, and the general welfare.” Id.

233. Carter, supra note 51, at 1366.

234. See 18 U.S.C. § 1962 (prohibiting any individual who gains income from racketeering activity or unlawful debt collection to use or invest that income to acquire, establish, or operate enterprises involved in or affecting interstate or foreign commerce). The Supreme Court has recognized that statutes like RICO are a valid exercise of Congress’s Commerce Clause power, provided they include a jurisdictional element ensuring a connection to interstate commerce. See United States v. Lopez, 514 U.S. 549, 561–62 (1995); United States v. Robertson, 514 U.S. 669, 670–72 (1995). Courts have consistently upheld RICO, noting its focus on enterprises whose activities affect interstate commerce.

235. Suzanne M. Strong & Mark Motivans, Racketeer Influenced and Corrupt Organizations (RICO) Cases in Federal Courts, 2012-2022, U.S. Dep’t of Just.: Bureau of Just. Stats. 3 (Sep. 2024), https://bjs.ojp.gov/document/ricocfc1222.pdf [https://perma.cc/R9BC-URGA].

236. Id. at 5.

237. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

238. Id. at 636 (holding that the “absolute prohibition of handguns held and used for self-defense in the home” violates the Second Amendment).

239. See discussion infra Section III.B.

240. Civil Rights Cases, 103 U.S. at 22.

241. Id.

242. Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 7 (1990).

243. Charles Sumner, Exclusion of Witnesses on Account of Color, S. Rep. No. 38-25 (1864) (emphasis omitted).

244. See discussion infra Section III.A.

245. Fed. R. Evid. 404(b).

246. Rock, 483 U.S. at 51–56.

247. Id.

248. Kalven & Zeisel, supra note 6, at 160 (reporting that probability of acquittal in otherwise evenly balanced case decreases from 65% to 38% in face of jury’s knowledge of defendant’s prior convictions).

249. See Edward W. Cleary et al., McCormick on Evidence 99 (West Publ’g Co. 3d. ed. 1984) [hereinafter McCormick]. (noting that jury will pay close attention to prior conviction despite contrary instructions); Beaver & Marques, supra note 6, at 592–93 (noting prejudice caused by admission of prior conviction).

250. See Kalven & Zeisel, supra note 6 (reporting that probability of acquittal in otherwise evenly balanced case decreases from 65% to 38% in face of jury’s knowledge of defendant’s prior convictions); see also McCormick, supra note 249, at 99 (noting that jury will pay close attention to prior conviction despite contrary instructions); Beaver & Marques, supra note 6, at 592–93; Robert G. Spector, Impeaching the Defendant by His Prior Convictions and the Proposed Federal Rules of Evidence: A Half Step Forward and Three Steps Backward, 1 Loy. U. Chi. L. J. 247, 249 (1970) (discussing Kalven and Zeisel’s study); Dodson, supra note 111, at 3 (“It is widely accepted that in all likelihood a jury will consider the evidence for improper purposes.”); id. at 38–40, 41 & n.421 (noting that prior criminal records “increase the likelihood of conviction” and that jurors who know about prior convictions are “significantly more likely to convict” a defendant than jurors without such information).

251. Toni M. Massaro, Peremptories or Peers—Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 N.C. L. Rev. 501, 518 n.102 (1986) (“Some studies indicate that 60% of prospective jurors do not accept the principle that a defendant is presumed innocent.” (citing National Jury Project & National Lawyers’ Guild, The Jury System: New Methods for Reducing Prejudice A Manual for Layers, Legal Workers, and Social Scientists 2 (David Kairys, ed. 1975))).

252. Eisenberg, supra note 5, at 1356–57.

253. Id. at 1357.

254. Bellin, supra note 7, at 413–14.

255. Id. at 414.

256. See Dodson, supra note 111, at 33 n.330 (citing Kalven & Zeisel, supra note 6, at 179); see also Bellin, supra note 7, at 402 (“If the defendant testifies, his record will generally be admitted.”) (citing Kalven & Zeisel, supra note 6, at 147 (reporting that the jury hears about the defendant’s record in 72% of the cases when defendant takes the stand and in 13% of the cases when the defendant does not)).

257. United States v. Gilliland, 586 F.2d 1384, 1389 (10th Cir. 1978) (quoting United States v. Burkhart, 458 F.2d 201, 204–05 (10th Cir. 1972)).

258. Julia Simon-Kerr, Credibility by Proxy, 85 Geo. Wash. L. Rev. 152, 190, 213 (2017) (“The judges and attorneys who framed early evidence jurisprudence did so against a background of belief that the indicia of honesty, beliefs that included overt negative assumptions based on race and deviations from gender norms.”).

259. Jeffrey Bellin, Improving the Reliability of Criminal Trials Through Legal Rules That Encourage Defendants to Testify, 76 U. Cin. L. Rev. 851, 852 n.1 (2008) (citing Stephen J. Schulhofer, Some Kind Words for the Privilege Against Self-Incrimination, 26 Val. U. L. Rev. 311, 329–30 (1991)).

260. Id. at 852.

261. Richard D. Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and a Proposed Overhaul, 38 UCLA L. Rev. 637, 678–88 (1991).

262. Id. at 667; see Lewis Mayers, Shall We Amend the Fifth Amendment? 21 (1959) (stating that seventy-one percent of poll respondents inferred guilt from defendant’s refusal to testify); see also McCormick, supra note 249, at 99 (discussing the dilemma of whether the accused should testify).

263. This paper proposes that Congress enact an almost identical rule to replace the current language of Rule 609. The purpose and effect of this affirmative rule should be to prevent the conviction itself and the underlying facts of the prior conviction from being entered into evidence for the purpose of impeachment.

264. Mont. R. Evid. 609.

265. See Carodine, supra note 159, at 538.

266. Mont. R. Evid. 609.

267. Emily Horjus, Are All Felons Liars? Reexamining Federal Rule of Evidence 609 Under the Lens of Equal Protection, 55 New Eng. L. Rev. 117, 117, 119 (2021) (noting that by the end of 2016, Black people made up 487,300 of the “1,506,800 prisoners with sentences of more than one year[.]” (citing E. Ann Carson, Prisoners in 2016, Dep’t of Just.: Bureau of Just. Stats. 1, 5 (Jan. 2018), https://bjs.ojp.gov/content/pub/pdf/p16.pdf [https://perma.cc/WS4D-MLFD]).

268. David Jacobs & Jason T. Carmichael, The Politics of Punishment Across Time and Space: A Pooled Time-Series Analysis of Imprisonment Rates, 80 Soc. Forces 61, 72–82 (2001).

269. Id.

270. Montana, U.S. Census Bureau (2024), https://data.census.gov/profile/Montana?g=040XX00US30 [https://perma.cc/Z4SR-GD72].

271. See Jacobs & Carmichael, supra note 268.

272. Id.

273. Id.

274. See supra Parts I–III.

275. The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, U.S. Dep’t of Just.: Civ. Rts. Div., https://www.justice.gov/crt/matthew-shepard-and-james-byrd-jr-hate-crimes-prevention-act-2009-0 [https://perma.cc/GU4T-G5VF] (last visited Jan. 1, 2025); Emmett Till Antilynching Act, Pub. L. No. 117-107, 136 Stat. 1125 (2022) (codified at 18 U.S.C. § 249(a)(5)–(6)).

276. See supra note 96 and accompanying text (discussing how the Thirteenth and Fourteenth Amendments empower both Congress and the Judiciary to enforce both Amendments).

277. See discussion supra Section II.B.

278. Lyndon B. Johnson, Commencement Address at Howard University: “To Fulfill These Rights” (June 4, 1965), in Public Papers of the Presidents of the United States: Lyndon B. Johnson 1965 Book II 636 (1966).

279. Additionally, the Due Process Clause provides Congress with the authority to amend Rule 609. It prohibits states from depriving individuals of life, liberty, or property without due process of law and requires fundamental fairness in criminal proceedings. Rule 609, in its current form, undermines the fundamental fairness of trials for Black defendants, effectively denying them the full protection of due process.

280. See supra note 96 and accompanying text (discussing how the Thirteenth and Fourteenth Amendments empower both Congress and the Judiciary to enforce both Amendments).

281. See Brown, 347 U.S. at 495 (unanimously declaring segregated schools “inherently unequal” and repudiating Plessy v. Ferguson’s “separate but equal” doctrine); Loving v. Virginia, 388 U.S. 1, 11–12 (1967) (invalidating anti-miscegenation statutes as “measures designed to maintain White Supremacy” through racial purity laws); Batson, 476 U.S. at 87 (prohibiting race-based jury selection as constitutional violation, recognizing that “[t]he harm from discriminatory jury exclusion extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.”).

282. See discussion supra Section II.B.

283. See generally Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding the constitutionality of “separate but equal” doctrine, which was abolished fifty-eight years later).

284. Amna A. Akbar, Non-reformist Reforms and Struggles over Life, Death, and Democracy, 132 Yale L.J. 2497, 2527 (2023) (defining non-reformist reforms as an attempt to disrupt existing systems while advancing a transformative vision, grounded in popular democratic movements and collective agency).

285. Id. at 2528 (French Austrian philosopher André Gorz made his essential contribution to Marxist theories of social change by coining the term “non-reformist reform.”). Akbar continues, “[f]or [Ruth Wilson] Gilmore, non-reformist reforms are ‘changes that, at the end of the day, unravel rather than widen the net of social control through criminalization.’” Id. at 2529–30.

286. See supra note 281 and accompanying text.

287. The legalization of marijuana in many states is an example of a recent legislation that helped to limit the discriminatory over-policing of Black communities. For example, New Jersey has clarified that “[i]f the driver is not found to be under the influence, the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search.” N.J. Off. of. Att’y Gen., Frequently Asked Questions: Marijuana Decriminalization and Legalized Cannabis (2022), https://www.nj.gov/oag/marijuana/docs/FAQs_Updated_5.27.22.pdf [https://perma.cc/6HLP-B3ZD].

288. See Fed. R. Evid. 609(b).

289. The fact that Fred Warren’s testimony helped the jury understand his humanity and the truth of what was going on in his case is not intended to suggest that Black defendants can simply take the stand more often to testify on their own behalf, and this will resolve the profound issues presented by Rule 609.