Peter Wagner, Executive Director
I need your help. For more than a decade, the Prison Policy Initiative has been at the forefront of the movement to expose how mass incarceration undermines our national welfare. We've won major civil rights victories in local governments, state legislatures and even the Supreme Court. But our long-term viability depends on people like you investing in our work.

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—Peter
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Example Bill: Ending prison-based gerrymandering in your state.

This model bill allows a state to end prison gerrymandering without waiting for the Census Bureau to change where it counts incarcerated people. It is similar to the legislation passed in Maryland, New York, Delaware and California, and the Maryland law was upheld by the Supreme Court in Fletcher v. Lamone, __ U.S. __, 2012 WL 1030482 (June 25, 2012). This bill would require the state Department of Corrections to, over time, improve its collection of home address information, and would develop procedures to use existing data to adjust the federal census prior to redistricting. In the comments, we also offer some guidance about adapting the model bill to the specifics of your state. Don't hesitate to reach out if we can be of any assistance with drafting a bill or developing a campaign around ending prison gerrymandering.

—Peter Wagner
last updated Feb 26, 2014

Purpose of Legislation

This bill provides for adjusting population data used in redistricting to conform to the [Oregon] Constitution. The Census Bureau allocates incarcerated persons as if they were residents of their places of incarceration rather than of their home addresses. Article IV of Section 4, however, states that for “the purpose of voting, no person shall be deemed to have gained, or lost a residence... while confined in any public prison.”

Bill

Section 1. The legislature notes that section 4 of article IV of the [Oregon] constitution provides in pertinent part as follows: “For the purpose of voting, no person shall be deemed to have gained, or lost a residence... while confined in any public prison.” Investigation has shown that, despite these provisions, the Census classifies incarcerated persons as residents of their places of incarceration rather than of their home addresses. The provisions of this act are necessary to provide procedures and duties to correct this discrepancy.

This section cites the Oregon constitution, but most states have similar constitutional or statutory provisions defining residence. See our 50 state guide for the law in each state.

Section 2. The election law is amended by adding a new section 188.020 to read as follows:

1. Electronic record. The Department of Corrections shall, starting within 6 months of the effective date of this statute, collect and maintain an electronic record of the legal residence, presumptively outside of the facility, and other demographic data, for any person entering its custody. At a minimum, this record shall contain the last known complete street address prior to incarceration, the person's race, whether the person is of Hispanic or Latino origin, and whether the person is over the age of 18. To the degree possible, the Department of Corrections shall also allow the legal residence to be updated as appropriate.

This section requires that the Department of Corrections start keeping records of residence for people entering its custody. Because most prison sentences are short, starting the data collection process for people entering custody would produce a nearly complete data set for redistricting following the 2020 Census.

States may wish to consider whether the nature of the corrections system in their state necessitates expanding the scope of the bill to other kinds of correctional facilities.

2. Reports to the Secretary of State.

This section requires reporting to the Oregon Secretary of State because the Oregon Secretary of State has an active role in redistricting. In other states, other agencies or redistricting authorities may be more appropriate to handle the adjustment.

(a) In each year in which the federal decennial census is taken but in which the United States Bureau of the Census allocates incarcerated persons as residents of correctional facilities, the Department of Corrections shall by May 1st of that same year deliver to the Secretary of State:

This section requires the Department of Corrections to provide the Secretary of State with the residence, race, ethnicity, and age information for each person in custody at Census time. The section also contains a sunset provision that terminates the reporting and data adjustment when the Census Bureau counts incarcerated people at home.

(i) a unique identifier, not including the name, or SID (state offender ID) number, for each incarcerated person subject to the jurisdiction of the department on the date for which the decennial census reports population. The unique identifier shall enable the Secretary of State to address inquiries about specific address records to the Department of Corrections, without making it possible for anyone outside of the Department of Corrections to identify the inmate to whom the address record pertains;

(ii) the street address of the correctional facility in which such person was incarcerated at the time of such report;

(iii) the last known address of such person prior to incarceration or other legal residence (if known);

This section is a privacy provision that prevents public disclosure of individual address information. Note that other states have their own unique equivalents to the Oregon SID numbers.

(iv) the person's race, whether the person is of Hispanic or Latino origin, and whether the person is over the age of 18 (if known);

(v) any additional information as the Secretary of State may request pursuant to law.

(b) The department shall provide the information specified in paragraph (a) of this subdivision in such form as the Secretary of State shall specify.

(c) Notwithstanding any other provision of law, the information required to be provided to the Secretary of State pursuant to this subdivision shall not include the name of any incarcerated person and shall not allow for the identification of any such person therefrom, except to the Department of Corrections. The information shall be treated as confidential, and shall not be disclosed by the Secretary of State except as redistricting data aggregated by census block for purposes specified in Section 4.

3. Federal facilities. The Secretary of State shall request each agency that operates a federal facility in this State that incarcerates persons convicted of a criminal offense to provide the Secretary of State with a report including the information listed in subsection (a) of Section 2.

This section requests federal cooperation. While the state cannot require the federal government to participate in a state redistricting effort, there is no reason why the federal government would not respond to reasonable requests for cooperation given sufficient time and support.

4. The Secretary of State shall prepare redistricting population data to reflect incarcerated persons at their residential address, pursuant to Section 5. The data prepared by the Secretary of State pursuant to Section 5 shall be the basis of state house of representative districts, state senate districts, and all local government districts that are based on population. Incarcerated populations residing at unknown geographic locations within the State, as determined under subsection (c)(ii) of Section 5 shall not be used to determine the ideal population of any set of districts, wards, or precincts.

This section tasks the Secretary of State with performing the data adjustment. It requires state, county and other local governments to use the adjusted data, and it clarifies how the count of people at unknown geographic locations within the state is to be used.

5. Determinations and data publication by the Secretary of State.

(a) For each person included in a report received under Sections 2 and 3, the Secretary of State shall determine the geographic units for which population counts are reported in the federal decennial census that contain the facility of incarceration and the legal residence as listed according to the report.

(b) For each person included in a report received under Sections 2 and 3, if the legal residence is known and in this State, the Secretary of State shall:

(i) Ensure that the person is not represented in any population counts reported by the Secretary of State for the geographic units that include the facility at which the person was incarcerated, unless that geographic unit also includes the person's legal residence.

(ii) Ensure that any population counts reported by the Secretary of State reflect the persons' residential address as reported under Sections 2 and 3.

This section requires the Secretary of State to re-allocate the redistricting data to reflect incarcerated persons at their residential addresses.

(c) For each person included in a report received under Sections 2 and 3 for whom a legal residence is unknown or not in this State, and for all persons reported in the census as residing in a federal correctional facility for whom a report was not provided, the Secretary of State shall:

(i) Ensure that the person is not represented in any population counts reported by the Secretary of State for the geographic units that include the facility at which the person was incarcerated.

(ii) Allocate the person to a state unit not tied to a specific determined geography, as other state residents with unknown state addresses are allocated, including but not limited to military and federal government personnel stationed overseas.

This section directs the Secretary of State on how to process missing or incomplete data.

(d) The data prepared by the Secretary of State pursuant to this section shall be completed and published no later than 30 days from the date that federal decennial PL94-171 data is published for the State.

The Census Bureau's redistricting data will become available between January and March 2021, but the Secretary of State will receive the report from the prison systems about a year earlier, by May 2020. Depending on state and local redistricting deadlines, some states may be able to give the Secretary of State more time for completing the new dataset, and some states may have to give less time.

(e) The Secretary of State shall notify local governments that Section 4 requires local governments to use the data prepared by the Secretary pursuant to this Section for redistricting purposes.

We've often see local governments—or their redistricting consultants—be unaware of state legislative changes like this, so we propose this notification mechanism. In some states the Secretary of State already has a pass-though role for local redistricting data that makes the office particularly well-suited to educate local governments on the data requirements of Section 4. In other states, other agencies may be more appropriate.

6. The data prepared by the Secretary of State in Section 5 shall not be used in the distribution of any state or federal aid.

This section explicitly states that the bill would not effect the distribution of federal or state funds. Since the bill only changes the redistricting data, and no federal or state funds are distributed on the basis of state or local redistricting data, some states may consider this provision unnecessary. On the other hand, advocates in some states have found it helpful to clarify this bill would not reduce the funding received by communities that host prisons.

7. If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are severable.

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  • February 20, 2015:
    Executive Director Peter Wagner, Board Member Amanda Alexander and Advisory Board Member Bruce Reilly will present on a panel entitled “The fight against mass incarceration: Combining litigation and policy work for systemic change” at RebLaw at Yale Law School from 3-4:30pm.

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Events

  • February 20, 2015:
    Executive Director Peter Wagner, Board Member Amanda Alexander and Advisory Board Member Bruce Reilly will present on a panel entitled “The fight against mass incarceration: Combining litigation and policy work for systemic change” at RebLaw at Yale Law School from 3-4:30pm.

Not near you?
Invite us to your city, college or organization.

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