The Shadow Defendants

• Pages: 823-884
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Mariam A. Hinds
• Subject Matter: Derecho Civil

The Shadow Defendants

MARIAM A. HINDS*

Although the overrepresentation of men, specif‌ically Black men and

men of color, in the criminal legal system is well documented, the people

who support these men, especially women, have garnered less attention.

Women who are proximate to system-involved men—mothers, grand-

mothers, sisters, daughters, girlfriends, and wives—are invisible actors

in the criminal legal system who perform critical tasks and provide

essential support. They appear in court to demonstrate a person’s family

and community ties, use their assets as collateral for bail, deposit money

in commissary accounts, maintain social ties during imprisonment

through letters and visits, and bear the burden of f‌illing the gap left by an

absent father, brother, husband, or caregiver.

Building on work from other disciplines that identif‌ies how the crimi-

nal legal system creates a group of people in need of caretaking and

appoints women, especially Black women and women of color, as the pri-

mary performers of this caretaking labor, this Article excavates the bur-

dens and consequences suffered as a result of this labor’s performance.

It argues that the criminal legal system subjects women—whom it calls

“shadow defendants”—to a form of “secondary criminalization,” whereby

they experience many of the same consequences of criminal legal system

involvement as the loved ones they support.

Secondary criminalization f‌lows from laws, norms, procedures, and

mechanisms that invite the criminal legal system into every aspect of a

woman’s life, including her schedule, bedroom, bank account, mind,

body, reputation, and social ties. This Article unearths these legal mech-

anisms and examines how secondary criminalization impacts shadow

defendants’ time, f‌inancial resources, privacy, liberty, and physical and

mental health, as well as the wellbeing of their relationships. It concludes

by outlining reforms that can reduce the consequences and burdens that

shadow defendants bear.

* Clinical Associate Professor of Law, Fordham University School of Law. © 2025, Mariam

A. Hinds. I thank Jenny Roberts, Norrinda Brown, and Nestor Davidson for their invaluable feedback

and support. I am also grateful for the helpful recommendations that I received from workshop

participants at the 2022 and 2023 Criminal Law Review Writers’ Workshops, ABA-AALS Academy for

Justice Workshop, 2023 Mid-Atlantic Clinical Conference, 2023 AALS Clinical Conference, 2023 Lutie

A. Lytle Workshop, and 2023 Crimfest Workshop. Thank you to Angelica Ceballos, Jonathan Goff, and

Emilia McManus for superb research and writing assistance and to The Georgetown Law Journal’s

Editors for their careful attention and insightful edits. Finally, thank you to my family and loved ones for

their unending support.

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TABLE OF CONTENTS

INTRODUCTION. 825

I. THE CRIMINAL LEGAL SYSTEM’S NEED FOR CARE . . . . . . . . . . . . . . . . . . 829

A. WHO NEEDS CARE? THE CRIMINAL LEGAL SYSTEM’S CREATION OF

NEEDS ................................................. 830

1. Arrest, Prosecution, and Incarceration ................. 830

2. What Are Their Needs?.............................. 833

B. WHY WOMEN? . 834

C. THE FOURTH SHIFT. . 836

II. SECONDARY CRIMINALIZATION. 839

A. SECONDARY PRISONIZATION . 840

B. THE FIVE DOMAINS OF SECONDARY CRIMINALIZATION. 841

III. WOMEN AS SHADOW DEFENDANTS: THE COSTS AND CONSEQUENCES . . . 845

A. TIME . 846

B. ECONOMIC CONSEQUENCES. 851

1. Fines, Fees, and Restitution .......................... 852

2. The Bail Bond System............................... 855

3. Costs of Incarceration ............................... 859

4. Collateral Consequences............................. 862

C. DEPRIVATION OF LIBERTY AND PRIVACY . 866

D. PHYSICAL, MENTAL, AND EMOTIONAL HEALTH CONSEQUENCES. 872

E. IMPACT ON RELATIONSHIPS. 873

IV. SHINING LIGHT ON THE SHADOWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 875

A. WHO CARES? SECONDARY CRIMINALIZATION’S IMPORTANCE . 875

1. Between a Rock and a Hard Place: The Illusion of Choice 875

2. Shadow Defendants Make Us Safer ................... 877

3. Shadow Defendants Subsidize the Criminal Legal System 878

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4. Shadow Defendants as Shadow Defenders ............. 879

5. Shadow Defendants and Vulnerability................. 879

6. Shadow Defendants Reveal Critiques of the Criminal

Legal System ...................................... 880

B. SHADOW DEFENDANTS, THE FUTURE, AND RESISTANCE . 880

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884

INTRODUCTION

To a public defender, phone numbers are gold. It is conventional wisdom

among public defenders that when you meet a client, you ask for both their con-

tact information and the phone numbers of family members, friends, and others

who live with or frequently interact with the client. However, during my years as

a public defender, I developed a more nuanced version of this pattern. After

much trial and error (and many bench warrants issued for absent clients), I began

to specif‌ically request the contact information for the closest woman—be it a

mother, sister, grandmother, wife, or girlfriend—to my clients.

Although the overwhelming majority of my clients were men, specif‌ically

Black men and other men of color, women played a critical role in clients’ cases,

often performing crucial tasks.

1

In using the term “women,” this Article takes guidance from a study examining the impact that

having an incarcerated loved one has on women. The study authors used the term “women” to include

“cisgender women, transgender women, and genderqueer and gender nonconforming people” and

recognized that “its value as a term is limited by the gender binary it often operates to reinforce.” G

INA

CLAYTON, ENDRIA RICHARDSON, LILY MANDLIN & BRITTANY FARR, ESSIE JUST. GRP., BECAUSE SHE’S

POWERFUL: THE POLITICAL ISOLATION AND RESISTANCE OF WOMEN WITH INCARCERATED LOVED ONES

11 n.** (2018), https://www.becauseshespowerful.org/wp-content/uploads/2018/05/Essie-Justice-

Group_Because-Shes-Powerful-Report.pdf [https://perma.cc/5Y25-MME8]. Similarly, the use of the

term “women” and many of this Article’s observations rest on heteronormative values ref‌lective of

society’s gender binary. The limitations of the term “women” are abundant, and it is used solely as a

descriptive term, absent an intent to exclude or discount anyone’s lived experience.

Many acted as de facto case managers—reliably

answering their phones, returning voicemails, responding to reminders about

upcoming court appearances, and appearing at night arraignments to show the

judge that my client had robust community ties. They notif‌ied me about new

arrests and appeared at sentencing hearings. They assumed f‌inancial responsibil-

ities: f‌inding and hiring bail bondsmen, paying bail or putting up assets as collat-

eral for bond, and paying f‌ines, fees, and court costs.

When a client’s case culminated in a conviction and incarceration, the women

paid for jail or prison calls, put money in the client’s commissary account, wrote

to and visited the client, and bore the burden of f‌illing the gap left by an absent fa-

ther, brother, husband, or caretaker. Even after an incarcerated loved one returned

home, the women shared the collateral consequences of criminal legal system

involvement, including losses of privacy and liberty, fewer job opportunities,

ineligibility for housing or social services, and immigration implications.

1.

2025] THE SHADOW DEFENDANTS 825

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