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 Abstract

Excerpted From: Rabia Belt, The Fat Prisoners' Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future, 110 Georgetown Law Journal 785 (April, 2022) (344 Footnotes) (Full Document)

People can ask Reddit or Quora about practically anything. On both Internet spaces, inquiring minds want to know: what is prison like if you are fat? The answers? Terrible. Jim Christmas recounted the experience of a fellow incarcerated man who could not fit on his designated bunk. “Every single night, he slept sitting up with a sheet covering his head like a bird cage.” This man also had trouble making it to the bathroom on time and wiping himself after using the toilet. Shelby McCort noted that being fat in prison was not a rare occurrence: “The common thing in prison, it seems, is to gain weight ... and gain a lot of it.” Reddit commenters shared the sentiment that prison contributed to weight gain. One commented: “Most of the food available for purchase in the commissary is junk food, the stuff of corner stores ... Doritos, candy. The daily meal-ration will also usually be largely be [sic] comprised of some sort of cheap carb (white bread, stuff like that).”

These responses are probably not surprising. Incarcerated people are at risk for fatness and weight gain based on several factors, including but not limited to gender, sexuality, race, sedentary lifestyles, lack of access to exercise, substance withdrawal, poor diets, stress, depression, side effects of psychotropic medication, and age. Prisons and jails control two of the largest variables affecting weight gain--access to food and access to physical activity--and strongly influence several of these other inputs.

Although mass incarceration and obesity, respectively, are significant areas of controversy, research, and advocacy, fat incarcerated people have been comparatively neglected by scholars. Prison reform and abolition advocates highlighting poor prison conditions have noted many of the factors that pose risks for obesity and weight gain for incarcerated people without discussing the plight of fat incarcerated people. Disability scholars have addressed whether disability legislation can (and should) cover obesity. This conversation, however, has mainly focused on employment and travel. Fat advocates and women's studies scholars have also discussed fatness. This conversation has also centered upon employment, as well as body policing and appearance.

This Article illuminates the difficulties that fat incarcerated people face, the factors that produce fat incarcerated people, and potential remedies through law and politics. It addresses fatness and prison in multiple ways. First, it analyzes the problem of accommodation--carceral institutions do not adequately accommodate the needs of fat incarcerated people and their bodies. Current prison jurisprudence does not provide sufficient redress for conditions that are merely terrible rather than “deliberately discriminatory” or “cruel and unusual.” Current disability jurisprudence does not offer a robust avenue for obese claimants to demand reasonable modifications during incarceration due to uneven treatment of obesity as a legal disability and poor redress for disability modifications for incarcerated people.

Second, and more fundamentally, this Article's discussion of the social inequities that produce and maintain the population of fat people in prison reveals a larger tension in disability scholarship. Ameliorating fat incarcerated people's problems exposes other uncomfortable aspects of current disability scholarship, law, and advocacy. Rather than an almost-universal focus on how stigma unifies people with disabilities together, I contend that disability scholars and advocates should also emphasize the socially inequitable factors that produce many disabling conditions. Although not all disabilities result from social injustice, knitting together social inequality and disability would realign the disability field's focus on those who are most marginalized and reorient it more toward intersectional principles. At the same time, though, redressing debilitating social conditions through treating and healing impairments would herald a reduction in the disabled population. This proposal is an uncomfortable prospect for disability politics and a fraught subject for a community with a historical legacy of ableist treatment and attempted eugenic-based elimination.

Fat prisoner dilemmas are not unique on their own. Nevertheless, they are revealing because they sit at the center of many interlocking issues. They display the power of the state, as carceral spaces control so much of an incarcerated person's life. They showcase the importance of addressing impairment and not just stigma for disability law. We think of both fat people and incarcerated people as blameworthy and deserving of their fates when in fact social conditions contribute to the production of both communities. At the same time, though, we encounter similar issues in other guises--poor people outside of prison who live in food deserts and swamps, Flint residents poisoned by lead in their water, people who are hurt by trauma, and other people who suffer bodily forms of injustice. This Article proceeds as follows. The beginning introduces the dilemmas that fat incarcerated people face as a case study. Part I gives an overview of fat incarcerated people--who they are, what factors contribute to weight gain in carceral spaces, and what the consequences are.

Part II looks at the possible legal remedies for reducing factors that promote weight gain and providing accommodations for fat incarcerated people. It shows how obesity is not properly addressed by disability law and also how incarcerated people have little legal recourse in ameliorating conditions that are merely harmful instead of significantly terrible or deliberately discriminatory.

The remainder of this Article offers a new model for disability informed by the difficulties raised by the case study of the first two Parts. Part III sets out a new model for disability that incorporates new notions of intersectionality and slow violence. It points to the plight of fat incarcerated people as an emblematic case of “slow violence,” making it difficult to remedy and link this plight to other conditions of impairment and inequity. This Article concludes by pointing the way to possible next steps for research and political collaboration.

[. . .]

Formulating the next steps is quite hard. At the current moment, there is more focus than usual on the negative aspects of mass incarceration. Protest on behalf of those affected by the carceral state, however, is still catalyzed by spectacular instances of violence that the issue of fat incarcerated people does not encompass. The modifications that fat incarcerated people need, and the factors that go into producing the population of fat incarcerated people, cannot be characterized as the actions of an unjust army (the police) intent on harming and killing innocent people. Instead, they are a component of the overall management practices of an unjust society.

There are some barriers to incorporating social harm into disability law. EEOC regulations explain that “[e]nvironmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record are not impairments” under the ADA, and the Individuals with Disabilities Education Act (IDEA)'s regulatory definition of a “[s]pecific learning disability” excludes “economic disadvantage.” That said, though, people can still claim impairments created from socioeconomic deprivation, such as metabolic disorders stemming from malnutrition and hunger or psychiatric disorders following exposure to trauma, as disabilities under the ADA.

Carceral institutions can change their food practices to provide healthier food. Pennsylvania and Massachusetts have implemented healthier menus. New York City and Philadelphia have created nutritional standards that apply within carceral spaces. Some states have recognized the shortsighted nature of providing cheap and unhealthy food given the long-term and costly consequences. Florida and Minnesota transitioned to prison-created food: “An audit of Florida's Aramark contract found that its food costs were lower, quality was better, and more [incarcerated people] actually ate the food when the Department operated its own food services program.” And after struggling with a private contractor, Minnesota decided to return food services to in-house control in 2015, “providing real food for [incarcerated people] even if it costs more money.” Carceral institutions can also provide activities, mandated by regulation and backed up by robust oversight, to help incarcerated people stave off weight gain and manage stress.

Above all, more data is needed to measure prison conditions, the factors that produce and maintain fatness, and to link conditions within and outside the prison walls. For the most part, incarcerated people are not included in public health surveys. The main source of health information about incarcerated people is compiled by the Bureau of Justice Statistics, which is years out of date. As the Prison Policy Initiative notes: “The [Survey of Prison Inmates] was conducted every 5-7 years from 1974-2004, and was finally conducted again in 2016.” “The next Survey of Inmates in Local Jails is slated for release in 2022; at that point, it will be 15 years off-schedule.” The infrequency of reports, and the steady reduction of information contained in these reports is troublesome and could be attributed to “[i]nsufficient funding, recent changes in leadership, [or] staff attrition.” As for research where incarcerated people are included, much of the data about weight is self-reported, which raises questions about its accuracy. Moreover, research about fatness needs to incorporate multiple avenues of attention, from chronic illness prevalence, to the impact of stigma and sizeism, to the significance of trauma and violence. Finally, research should disaggregate prisons and jails, which could have vastly different obesogenic factors.

There are numerous pitfalls ahead when pursuing this work. If we provide incarcerated people with an array of foods and physical activity, does obesity become their fault because they chose wrong? It is probably more likely for us to think about “blaming” them for inputs such as poor eating instead of thinking of poor eating as caused by stress, trauma, and other troubling factors. What about allowing people who are in abject circumstances the pleasure of unhealthy food? Commissary food is the only break that incarcerated people receive from bland prison food. Perhaps the first move that carceral institutions would make is restricting the type of food that incarcerated people could receive from their loved ones.

Finally, there is a significant tension between wanting to provide disabled people the ability to determine the type of lives they would like to lead and providing a social structure that would lend itself to certain outcomes for people. It can be easier for society to blame disabled people for their continued impairments in a masked ploy to accommodate individual wishes than redistribute resources and attention to redress broad social inequities that produce impairments. Also, because of ableism and sizeism, it is not as simple as leaving choices up to the individual because those choices are contaminated by the social messages that assign negatively stereotyped attributes to fat and disabled bodies.

Moving forward with an intersectionality paradigm that incorporates attention to social injustice and disability is complicated and fraught but also offers the potential for significant overlapping opportunities for scholarship and advocacy. This Article offers a provocation of one such area, fatness and incarceration. It also points the way to the myriad possibilities of disability--as the lexicon of slow violence; as an axis of intersectional and interlocking axes of oppression; as a consequence of social injustice; as a subject of history, community, politics, and law.

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

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