The Fat Prisoners' Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future

• Author: Rabia Belt
• Position: Associate Professor, Stanford Law School. A.B., Harvard College; J.D., University of Michigan Law School; Ph.D., University of Michigan
• Pages: 785-833

The Fat Prisoners’ Dilemma: Slow Violence,

Intersectionality, and a Disability Rights

Framework for the Future

RABIA BELT*

America is having a reckoning on mass incarceration. Events such as

George Floyd’s killing, COVID behind bars, and Black Lives Matter

have punctured our collective consciousness. Advocates and scholars

alike are pushing U.S. society to examine the costs—financial, psychic,

social—of putting millions of people behind bars. Despite this investiga-

tion, some of the day-to-day difficulties of mass incarceration may escape

appraisal. This Article reveals one of these problems, charts the difficul-

ties in solving it, and offers a new way forward for thinking about mass

incarceration, disability, intersectionality, and violence.

The mass-incarceration crisis exacerbates obesity at the hands of the state

and fails to accommodate the consequences of the problem that it created.

Incarcerated people are at risk for weight gain based on several factors. As

an initial matter, various overlapping social factors such as inadequate

access to nutritious food and socioeconomic deprivation increase the risks

of both incarceration and obesity. Once a person is incarcerated, prisons

and jails then govern two of the largest inputs to control weight gain—

access to food and physical activity—and strongly influence several other

elements that contribute to obesity. Not all fat people experience debilitating

effects from their bodies and mass incarceration does not cause all weight

gain. However, the carceral space bears some responsibility for producing

negative effects for incarcerated people, and this assemblage of negative

effects can include bodily changes such as weight gain.

Law has ignored the problems of fatness in prisons and jails and regu-

larly fails to address much-needed accommodations for fat incarcerated

* Associate Professor, Stanford Law School. A.B., Harvard College; J.D., University of Michigan

Law School; Ph.D., University of Michigan. © 2022, Rabia Belt. For helpful feedback, thank you to

Gregory Ablavsky, Sophie Allen, Samuel Bagenstos, Ralph Richard Banks, Monica Bell, Natalie Chin,

Doron Dorfman, Elizabeth Emens, Katie Eyer, Margot Finn, Laura Gomez, Alexis Hoag, Eisha Jain,

Jonathon Jones, Elizabeth Papp Kamali, Craig Konnoth, Mark Krass, Stephen Lee, Katherine Lennard,

Jamelia Morgan, Anne Joseph O’Connell, Alexander Olson, Shaun Ossei-Owusu, Lisa Ouelette, John

Rappaport, Deborah Rhode, Britany Riley, Margo Schlanger, Andrew Selbst, Jennifer Shinall, Jocelyn

Simonson, Norman Spaulding, Michael Ashley Stein, Karen Tani, and Guy Uriel-Charles. Thank you to

Aryn Frazier, Ben Hattem, Lisa Muloma, and Dylan Simmons for useful comments. Sam Becker, Celina

Malave

´, and especially Miye D’Oench and Elizabeth Reetz provided outstanding research assistance.

Thank you, as always, to the excellent research librarians at Stanford Law School, especially Taryn

Marks. I am grateful to audiences at the Culp Colloquium, Lutie Lytle Conference, the University of

Michigan Course on Obesity, Georgetown University Law Center, Brooklyn Law School, Cardozo Law

School, and UCLA Law School. Thank you to the editors of The Georgetown Law Journal for

thoughtful feedback and editing, especially Jordan Hollinger, Thomas Petrino, Jesus Rodriguez, Clare

Saunders, Darren James, and Nicholas Yacoubian.

785

people due to flaws in incarceration law and applications of disability

law.

The dilemma of fat incarcerated people extends beyond litigation diffi-

culties, however. It is a heuristic that illustrates the depth of the harm of

mass incarceration and the need to take disability seriously—and how

complicated taking disability seriously is. Attention to the social inequi-

ties that produce and maintain the population of fat people in prisons

exposes a profound tension in disability scholarship and activism.

Typically, disability scholarship and advocacy seek to unite a disability

community of people with varying bodily impairments by focusing on

stigma and stereotyping. While people’s bodies are different, all disabled

people experience ableism. This Article contends that disability scholars

and advocates can and should augment their focus on stigma and stereo-

typing to emphasize the social inequities such as environmental poison-

ing, racism, poverty, and violence that produce many debilitating

impairments. This proposal is an uncomfortable proposition for disability

scholarship and advocacy wary of eugenic treatment and “cures.”

Reducing social inequities would reduce the population of disabled peo-

ple, and advocacy to improve the environmental predecessors to impair-

ment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction

with respect for disabled people requires thoughtful consideration of the

production of impairments. Although not all disabilities are the result of

social injustice, knitting together social inequality and disability would

reorient the field on those who are most marginalized, redirect it toward

a greater reliance on intersectional principles, and link it to other politi-

cal and legal campaigns that challenge injustice.

Fundamentally, this Article offers a new disability paradigm to think

about intersectionality and slow violence. Law and politics are at a

crossroads where scholars and advocates alike are searching for new

frameworks to address the longstanding and troubling matters of social

injustice revealed in the wake of protest and reflection. Disability schol-

arship can help but only if disability thought leaders are willing to reex-

amine and reorient their current approach and classifications. With

respect to intersectionality, I argue that, in addition to examining the si-

multaneous, overlapping identities of multiply marginalized people,

incorporating disability into intersectionality would also require investi-

gation of how injustice produces impairment, which in turn creates peo-

ple who are multiply marginalized. With respect to slow violence,

carceral harms are ripe for incorporation into the pantheon of slow vio-

lence—situations where harm is accrued slowly, difficult to trace, and

susceptible to being overlooked. The bodily changes of incarcerated peo-

ple, such as weight gain, exemplify how this slow violence occurs.

786 THE GEORGETOWN LAW JOURNAL [Vol. 110:785

Disability is also a grammar that structures what slow violence is across

domains.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788

I. THE STATE OF THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790

A. WHAT ARE WE TALKING ABOUT WHEN WE TALK ABOUT FAT? . . . . . 790

1. Obesity and the Disease Model. . . . . . . . . . . . . . . . . . . . 790

2. Fatness and the Advocacy Model . . . . . . . . . . . . . . . . . . 791

B. WHO ARE FAT INCARCERATED PEOPLE? . . . . . . . . . . . . . . . . . . . . . . . 794

II. CURRENT AVENUES FOR LEGAL REDRESS . . . . . . . . . . . . . . . . . . . . . . . . . . 804

A. PROCEDURAL BARRIERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805

1. Too Fat to Jail, Too Fat to Execute . . . . . . . . . . . . . . . . . 806

2. Prison Litigation Reform Act . . . . . . . . . . . . . . . . . . . . . 807

3. Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809

B. DISABILITY-BASED FEDERAL CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . 809

C. NON-DISABILITY-BASED FEDERAL CLAIMS . . . . . . . . . . . . . . . . . . . . . 814

1. Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814

2. Federal Tort Claims Act . . . . . . . . . . . . . . . . . . . . . . . . . 817

D. STATE AND LOCAL CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819

1. Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819

2. Weight-Based Discrimination Statutes . . . . . . . . . . . . . . 820

III. DISABILITY’S POTENTIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 821

A. A NEW WAY FORWARD FOR INTERSECTIONALITY. . . . . . . . . . . . . . . . 821

B. SLOW VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 827

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 830

2022] THE FAT PRISONERS’ DILEMMA 787