Prisons and the Census Bureau

In 2010, the National Black Caucus of State Legislators passed a resolution calling for the U.S. Census Bureau to end counting prisoners at the facilities where they were detained, and to begin counting them at the address where they resided prior to incarceration. Because the Census Bureau perceives it is constitutionally restrained, several states have sought their own remedy with legislation. New laws in Maryland, Delaware, New York, and California attempt to ensure that prisoners are counted in the districts they resided in before they went to prison rather than the location of the prison. This legislation marks a turning point, allowing prisoners to be more equitably distributed across electoral districts.

Background

The Census Bureau counts prisoners as residents of the towns where they are incarcerated rather than where they originally resided, because the Constitution requires a count on the person’s current residency. The home communities of incarcerated people, however, often have little in common with the residents of the towns that host prisons. This becomes problematic for African Americans because they are overrepresented in prison systems. The uneven distribution of prisoners and the overrepresentation of African Americans in prisons can lead to inaccurate measures of true voting population demographics. Given that census data is used for redistricting and representation, the specific location of where the prisoner comes from becomes critical.
 
As the prison population has risen exponentially over the past few decades, counting people in prison undermines the Supreme Court’s requirement that political power be apportioned on the basis of population. The democratic process is compromised when the data illustrates African Americans and other minorities as disproportionately represented in the prisons.  Because incarcerated persons cannot vote, a false perception of a diverse voting population is created.

State Action

States can control how they allocate congressional and legislative district seats within their own borders and jurisdictions, and many have set out to do just that. Maryland has passed the first of such laws to change how prisoners are counted, with Delaware, New York, California following suit. Maryland and New York laws are the most poignant as both will affect reapportionment for the most recent Census. California and Delaware laws will both affect the 2020 census. Maryland and New York serve as the best models for legislation going forward; New York has noteworthy language on implementation while the Maryland legislation also affects congressional apportionment. States like Illinois and Connecticut also examined legislation during their past session on this important issue and hope to continue their efforts in 2012.

MARYLAND

No Representation without Population Act, SB 400 and HB 396 (Sen. Catherine Pugh; Del. Joseline Peña-Melnyk)

Summary - Requiring incarcerated individuals to be counted in a specified manner if the individuals were residents of the state before incarceration; and prohibiting incarcerated individuals from being included in the population counts used after each decennial census for the purpose of creating a specified congressional districting plan and the legislative districting plan for the General Assembly and the legislative districts that are used to elect the governing body of a county or a municipal corporation.

Background - Since the bill affects congressional, state, and local electoral districts, the bill took effect after the 2010 Census and required that state and local districts take into account where a prisoner’s previous address was when determining those districts. In Maryland’s Somerset County, 64% of the 1^st County Commission District is accounted for by a large prison.

Goals

• Allows for more equitable representation of the prison community;
• Ensures that voters are not penalized for their neighbors going to prison; and
• Ensures fair congressional, state, and municipal districts.

Concerns

• The bill will not help reallocate resources in the communities where the prisoners originate;
• It does not address how the prisoners will be counted or how their residence will be determined; and
• If a prisoner’s address cannot be determined, then s/he will be counted at the prison, which creates a bureaucratic incentive not to find original address of the prisoners.

NEW YORK

A Budget Bill, A. 9710-D and S. 6610-C (Legislative language regarding the Census is Part XX as part of a larger budget package.)

Summary - New York legislation requires that persons will be counted at the address they resided at before their incarceration. In addition, the legislation states if that address cannot be determined, then that person will not be counted as address unknown, which creates an incentive to find an address for each prisoner. The New York legislation applies to both State and Local government apportionment.
 
Background - The most dramatic examples of prison-based gerrymandering are in upstate counties and cities.  For example, half of a Rome City Council ward is incarcerated, giving the residents of that ward twice the influence of other city residents. Recognizing the distorting effect of prison-based gerrymandering at the local level, thirteen New York counties with large prisons have historically exercised their discretion to remove the prison populations prior to redistricting.

Goals

• Allows for more equitable representation of the prison community;
• Ensures that there is an incentive to find the correct addresses for the prison population; and
• Ensures fair state and local electoral districts and electoral representation.

 
Concerns

• The bill will not help reallocate resources in communities where the prisoners originate; and
• The bill does not apply to congressional districts. 

National Supporters and Resources

The Prison Policy Initiative has been one of the greatest allies to legislators in managing this complex issue. This organization has a wealth of knowledge and has been active on a number of fronts at the state level. "Prison-based gerrymandering dilutes the votes of everyone who does not live immediately adjacent to the state's largest prison. Especially disadvantaged by the practice are the African American communities that so many in prison call home. Maryland and New York have shown that states can correct the Census Bureau's flawed prison count and draw fairer districts based on incarcerated people counted in the right place," said Peter Wagner, Executive Director of the Prison Policy Initiative and author of Importing Constituents: Prisoners and Political Clout in New York and other reports. Please visit http://www.prisonpolicy.org/contact.html to contact Peter Wagner about enacting similar legislation in your state.

Prisoners of the Census - A project of the Prison Policy Initiative, which focuses solely on this issue.  
The NAACP Legal Defense and Education Fund - Fights for racial justice and equality.
American Civil Liberties Union - Advocates for social justice.
Brennan Center for Justice - Non-partisan public policy and law institute that focuses on issues of democracy and justice.
Public Mapping Project - Open source software designed to allow anyone to redraw districts.