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 criminal legal system creates a group of people in need of caretaking and appoints women, especially Black women and women of color, as the primary performers of this caretaking labor, this Article excavates the burdens 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 mechanisms 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.

Continue reading The Shadow Defendants.

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