Law and Loss: Notes on the Legal Construction of Pain

By Meredith Martin Rountree*

Volume 41.2

*Visiting Assistant Professor, Northwestern University School of Law; Ph.D., University of Texas at Austin; J.D., Georgetown University Law Center; A.B., Yale College.


Empirical research into the effects of mass incarceration reveals that the pains of contemporary imprisonment extend far beyond the prison walls.  This paper surveys how mass incarceration disrupts individuals’ lives in wide-ranging ways, exacerbating existing social disadvantages, alienating individuals from their families and neighbors, and further segmenting the communities to which these individuals belong.  While these effects are profound, court processes and social dynamics contribute to making these effects substantially invisible to most Americans.  The toll of mass incarceration is almost as invisible as it is potent, building as it does on existing structures of disadvantage.  By contrast, the visibility the law accords victim survivors in death penalty cases exacts its own cost.  The American death penalty system combines with broader social dynamics to create a sociological ambivalence for victim survivors—an environment both offering and constraining opportunities to mourn.  This paper suggests further empirical research is needed concerning the role the law plays in shaping an individual’s experience in reconciling the multiple demands of grief, mourning, and legal participation, as well as how the individual survivor’s social resources may influence his or her use of the law.  In both cases, however, we see how the law shapes loss, both on its own and in conjunction with other social processes, such as stigma and disadvantage.