by Alison Walsh, July 27, 2016

In their 2015 response (Word) to the Census Bureau’s request for comments on the proposed Residence Rule and Residence Situations, the members of the Formerly Incarcerated and Convicted People’s Movement powerfully draw upon their firsthand experience as unwilling participants in prison gerrymandering. President Dorsey Nunn writes, “Most, if not all, of us were at one time counted as parts of jurisdictions where we did not live…The political leadership where we were held against our will often drew their power from our presence.”

They argue that the reality of prison gerrymandering runs counter to the democratic ideal of equal representation:

We consider it nothing short of perverse that our bodies are used to over-inflate the population of a prison jurisdiction. The entire point of apportionment is for representation of an equal number of people by elected leaders. Without representation, there is no point in apportionment and no purpose to the U.S. Census Bureau other than a collection of demographic figures. As previously stated, the “representation” an incarcerated person receives from their unelected leader is inverted to their interests.

For the Formerly Incarcerated and Convicted People’s Movement, being used to artificially inflate population counts for the benefit of leaders who do not represent their interests is one of the ways in which “state and federal governments have stripped our American citizenship away.”

The Census Bureau is accepting comments through September 1 on their proposal to continue to count incarcerated people in the wrong location.


by Alison Walsh, July 26, 2016

In his letter to the Census Bureau (Word) regarding the Residence Rules and Residence Situations, Professor of Law and empirical economist James J. Prescott argues that counting incarcerated people in the wrong place is harmful to his profession and beyond.

I use data in my work, and I know how important data can be, both in arriving at truth and in helping us understand the world. It also affects the world, as you well know.

That’s why inaccurate population counts can have such a harmful effect on several levels.

Counting incarcerated people in the wrong place inflates the political power of people who live near prisons, when those counts are used for redistricting or other purposes. As you can imagine, this practice has serious repercussions for state legislative decisions that impact incarceration, but also it can have a huge impact on representational equality in the small communities that host the facilities.

Professor Prescott is a resident of Michigan, “a state at the forefront of how to deal with such population quirks.” Michigan law treats Census data as “the default source of data, but then creates an exemption for cases where the Bureau’s data falls short of Michigan’s standards of accuracy (such as counting incarcerated people in the wrong place).”

Instead of leaving states like Michigan to work around this shortcoming, Professor Prescott urges the Bureau to count incarcerated people at their home addresses. This will ensure that Census data can truly be “the best data for redistricting.”

As Professor Prescott explains, the decision of where to count incarcerated people influences more than prison-adjacent district lines and county seats. “I believe that a strong democracy and fair criminal justice policy depend on a population count that accurately represents all communities.”

Despite the far-reaching consequences described by Professor Prescott – as well as 154 other individuals and organizations – the Census Bureau announced plans to continue counting incarcerated people as residents of prison locations. Advocates are planning another round of comments to convince the Census Bureau it has made a mistake.


by Aleks Kajstura, July 25, 2016

The Census Bureau has extended the deadline to submit comments to September 1, 2016. The Bureau has requested comments on its proposed residence rules for the 2020 Census, which include a plan to once again count incarcerated people as if they were residents of the facility where they happen to be located on Census Day, rather than at home.

The Bureau explains:

Because of the scope of the proposed criteria, and in response to individuals and organizations who have requested more time to review the proposed criteria, the Census Bureau has decided to extend the comment period for an additional 31 days.

Written comments regarding the proposed “2020 Census Residence Rule and Residence Situations” can be emailed by September 1 to Karen Humes, Chief, Population Division at POP.2020.Residence.Rule@census.gov

If you submit a comment letter to the Bureau, we’d greatly appreciate it if you could please forward a copy to us at FRN@prisonpolicy.org


by Alison Walsh, July 25, 2016

In his letter to the Census Bureau regarding the Residence Rule and Residence Situations, Drew Kukorowski compares the two different approaches to counting prison populations he observed in his home state. Kukorowski is a member of Prison Policy Initiative’s Board of Directors and a resident of North Carolina, “a state in which the current Residence Rule distorted election district boundaries.”

In North Carolina, two counties removed the prison populations from the PL 94-171 redistricting data altogether, “thereby avoiding inflating the political clout of people who lived in the county districts that contained the prisons.”

Granville County went in a different direction. The county is “home to a massive federal prison complex” and “counted the people incarcerated in the county as if they resided in the county.”

Kukorowski argues that these are just two examples of how counties can respond to the complications prisons pose for redistricting. Neither solution is ideal.

The former are examples of the lengths to which local governments must go to adjust data effected by the Residence Rule, and the latter is an example of the political distortion that the Residence Rule causes when local governments rely on the PL 94-171 data provided by the Census Bureau.

When excluding the prison population for redistricting places an unfair burden on local governments, but including the prison population as prison residents artificially inflates population counts, it’s time for the Census Bureau to “count incarcerated people as residents of their last home address.”

Despite the testimony of Kukorowski – plus 154 other individuals and groups – the Census Bureau has proposed to continue counting incarcerated people as residents of the prison locations.

For more on prison gerrymandering in Granville, North Carolina, read Drew Kukorowski’s explainer, “The Harm of Prison Gerrymandering, Or is Bernie Madoff Really a Resident of Granville County School Board District 3?


by Alison Walsh, July 22, 2016

For the past two weeks, we’ve been highlighting the 2015 comment letters submitted to the Census Bureau in response to the federal register notice on Residence Rule and Residence Situations. Now that the Bureau has announced plans to continue counting incarcerated people as residents of prison locations, organizations and individuals have until August 1st to submit a new round of comments before the residence rules are finalized.

The Southern Center for Human Rights recently submitted a comment letter calling on the Census Bureau to “acknowledge the transient nature of modern incarceration and to count incarcerated people as residents of their home address.”

This is an important point because “the Bureau has decided that other populations – deployed overseas military and juveniles staying in residential treatment centers – should be counted in their home location.” The Southern Center explains that like overseas-deployed military personnel, incarcerated adults are unlikely to stay at one facility for long:

According to the Georgia Department of Corrections, the average person in the state prison system has been transferred 4 times and the median time they spent at the current facility is just 9 months. The data makes it clear that most prison populations are transient.

When incarcerated people make up such a significant portion of Georgia’s total population, “[c]ounting them in the wrong place is not an error that can be overlooked.”


by Alison Walsh, July 21, 2016

For over 14 years, our work has focused on ending the distortion of democracy caused by the Census Bureau’s decision to count incarcerated people as “residents” of correctional facilities. But when we wrote our comment to the Census Bureau in response to the 2015 federal register notice on Residence Rule and Residence Situations, we began by citing another expert on the subject. Former Census Bureau director Kenneth Prewitt summarized the problem over a decade ago: “Current census residency rules ignore the reality of prison life.”

Director Prewitt’s statement reflected the changing realities of incarceration across America. As we explain, “the usual residence rule is outdated and produces inaccurate data because of two relatively recent changes: the prison boom and the apportionment revolution that requires decennial redistricting at all levels of government on the basis of population.”

A bit of background on the prison boom:

The prison boom began in the 1970s, but its impact on the 1980 Census was, from a national viewpoint, modest. In fact, the Bureau didn’t even see it as necessary to mention incarcerated household members on the census form until the 1990 Census. But by 2000, the incarceration rate was more than four times higher than just two decades earlier. So the Bureau’s data did not result in a significant harm to our democracy until after the 2000 and 2010 Censuses.

At the last Census, the Bureau counted over 2 million incarcerated people in the wrong place.

The sheer size of the incarcerated population is not the only factor that undermines the accuracy of current Census data. Two other factors make the prison miscount even worse.

First, while the popular perception may be that most people in prisons and jails are serving long sentences, the opposite is actually true. The typical state prison sentence is only two or three years, and the incarcerated people are frequently shuffled between facilities at the discretion of administrators. For example, statistics in New York State show that the median time an incarcerated person has been at his or her current facility is just over 7 months. […]

Further, a stark and significant racial disparity in who goes to prison compounds the impact of a growing prison population. Our analysis of 2010 Census data shows that Blacks are incarcerated at 5 times the rate of non-Hispanic Whites, and Latinos are incarcerated at a rate almost two times higher than non-Hispanic Whites.

Our letter to the Census Bureau uses data from our 2015 report, The Racial Geography of Mass Incarceration. While many studies have discussed racial disparities within the prison population, this data reveals that stark racial and ethnic disparities exist between the prison population and the people directly outside the prison walls.

[W]e reviewed the magnitude of the gulf between the incarcerated population and the surrounding counties; finding 161 counties where incarcerated Blacks outnumber free Blacks, and 20 counties where incarcerated Latinos outnumber free Latinos. In many counties, the disparity is particularly stark.

Counting incarcerated people as residents of prison locations creates misleading demographic data and gives these counties a false appearance of diversity.

Virtually all — 98% — of New York state’s prison cells were located in state senate districts that were disproportionately White, diluting the votes of African-American and Latino voters. Similarly, in Connecticut, 75% of the state’s prison cells were in state house districts that were disproportionately White.

Modern redistricting rules also require more precise population data.

The early Censuses were primarily concerned with the relative population of each state for the purposes of apportionment. In the 1960s, however, the Supreme Court’s “one person one vote” cases, which require regular population-based redistricting at the state and local level, changed that. And the Census Bureau quickly became the data source for redistricting because it had the ability to provide accurate data down to the block level.

But it is precisely this need — accurate block level data — that is most dramatically undermined by the Bureau’s current interpretation of the usual residence rule. The Census is using a method that tabulates 1% of our entire adult population — and 6.4% of our Black adult male population — in the wrong location.”

Local governments, and even entire states, have taken it upon themselves to find solutions to the problem of prison gerrymandering within their borders. But a national solution depends on the Census Bureau.

Many of the most dramatic instances of prison gerrymandering are concentrated in just a handful of states like Minnesota, Tennessee, and Wisconsin, where state constitutions or state law appear to prohibit the cities and counties from adjusting the Bureau’s data when drawing their districts without regard to the absurd and undemocratic results. For example, the Minnesota statutes declare “When used in reference to population, ‘population’ and ‘inhabitants’ mean that shown by the last preceding federal decennial census. […]

To address all of these problems experienced by redistricting data users in state and local governments, the only viable solution is for the Census Bureau to update its interpretation of the residence rule for incarcerated people and count this growing part of our population in the right place – at home.

Despite the evidence we — and 154 other organizations and individuals — presented, the Census Bureau proposes to continue counting incarcerated people where they happen to be on Census day. To voice your opposition to this policy, submit your comment to the Census Bureau by August 1.


by Dan Kopf, July 20, 2016

In July 2015, University of Texas at Austin graduate student Rachel Gandy submitted a comment letter to the U.S. Census Bureau to express her frustration with the Bureau’s policy of counting incarcerated people as residents of their prison facility, rather than as residents of their hometown.

Gandy explains that not only does this practice defy “common sense”, it also disregards Texas law. She point to this statement in the Texas Election Code:

In this code, ‘residence’ means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence… A person who is an inmate in a penal institution… does not, while an inmate, acquire residence at the place where the institution is located.

Because the Census’ practice of including incarcerated people as residents of their prison runs counter to the Election Code, many Texan leaders must spend time fixing these counts, to avoid distorting democracy within their county or school board.

Gandy writes:

The Census Bureau’s Residence Rule ignores Texas law, so community leaders have had to take this problem into their own hands. In an investigation of jurisdictions with large prison populations, researchers found that almost all (86%) Texas communities rejected prison gerrymandering by excluding prisoners from population counts, even if the vote dilution impacts of including prisoners were miniscule. In some parts of the state, the effects of using uncorrected Census Bureau data would have been far from innocuous.

Though many community leaders have been able to obtain the correct counts on the local level, at the state level Texas still relies on Census data for districting. Since African Americans and Latinos are overrepresented in Texas’s prisons, and these facilities are often located in rural white areas, this has the important impact of diluting the political power of African-American and Latino communities.

Gandy is not alone in finding this policy untolerable. Many other organizations and individuals have called out the Census Bureau for choosing to count incarcerated people in a manner that harms communities and is in violation of the “one person, one vote” principle. Nonetheless, the Census Bureau proposes to continue to count incarcerated people in a way that conflicts with the Texas Election Code, conflicts with the need of African-American and Latino communities for fair representation, and conflicts with the common sense desire of the rural Texas communities that host prisons. All of these factors, Gandy writes, call for a change in how the Census Bureau counts incarcerated people.


by Jyoti Jasrasaria, July 19, 2016

Four members of the Massachusetts Legislature submitted a comment in response to the Census Bureau’s federal register notice about the Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

The group includes four authorities on the subject of redistricting: Stanley C. Rosenberg (Senate President and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012), Benjamin B. Downing (Chair of the Senate Committee on Redistricting), Edward F. Coppinger (Chair of the House Committee on Redistricting), and Michael J. Moran (Division Chair of the House of Representatives Leadership and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012).

In their comment, these four leaders urge the Census Bureau to count imprisoned people at their residential address rather than at the address of the correctional facility where they are temporarily incarcerated. The comment also includes a 2014 bicameral resolution to the same effect: “Urging the Census Bureau to Provide Redistricting Data that Counts Prisoners in a Manner Consistent with the Principles of ‘One Person, One Vote.’” The legislature adopted the resolution based on testimony and advice it received that prisons are often geographically and demographically distinct from the prisoners’ home communities. Due to this discrepancy, the authors contend that Census data distorts the one-person, one-vote principle:

By counting prisoners at their place of incarceration, rather than the legal address of the person prior to incarceration, the relative strength of votes by residents in that district [where a prison is located] are inflated at the expense of voters in all other districts in the Commonwealth.

The authors point out that the Census’s counting of incarcerated people at their “usual place of residence” instead of their “legal residence” has required individual states and localities to create their own methodologies to correct for problems of political representation. Thus far, California, Delaware, Maryland, and New York have adjusted the Census population totals to count incarcerated people at their home addresses. However, Maryland and New York have faced legal challenges to their adjustments, which the authors note as potential threats to other states unilaterally changing U.S. Census numbers.

Furthermore, Massachusetts is bound by its state constitution to base its legislative districts on the federal Census. Without action on the part of the Census Bureau to change its residence rule for incarcerated people, Massachusetts cannot change its own procedures. Therefore, as the groups’ comment asserts, “[t]he most expedient and streamlined avenue for changing the method for counting prison populations lies with the Census Bureau,” and an updated Rule would provide a uniform approach for all 50 states that would both “rectify the perceived inequalities in counting prisoners and eliminate costly litigation for states to defend redistricting plans based on adjusting local prison populations.”

Although, as Massachusetts’s resolution mentions, the Census Bureau has recognized the demand for more accurate prison population data, the Bureau has proposed to maintain counting incarcerated individuals at their prison facility addresses and disregard the comments from these redistricting experts.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.


by Alison Walsh, July 18, 2016

The Census Bureau’s proposal to continue counting incarcerated people as “residents” of prison locations, rather than at their home addresses, has drawn widespread opposition.

We can now add the Editorial Board of The New York Times to the list of those voicing dissent.

In “The Wrong Way to Count Prisoners,” the Editorial Board summarizes the problem of prison gerrymandering.

Counting inmates this way allows legislators who draw electoral lines to inflate the power of certain areas with “constituents” who have been stripped of the right to vote and have no interaction with the larger community.

The editorial also cites the recent decision in Cranston, Rhode Island, as evidence that counting people where they are temporarily incarcerated is unconstitutional.

The federal courts have recently begun to see this gerrymandering as a threat to electoral fairness. In May, for example, a United States District Court held that the city of Cranston, R.I., had violated the principle of one person one vote by deeming inmates at a correctional facility “residents” for the drawing of district lines for the City Council and the local school committee.

The court rightly found that the inmates who made up about 25 percent of Cranston’s Ward 6 were not true constituents. According to court documents, their median length of stay was only 99 days, which can in no way be seen as permanent residency. Those convicted of felonies were barred from voting. And inmates held for reasons other than a felony conviction, the court pointed out, were able to vote — but only by absentee ballot based on their addresses before incarceration. This meant that every seven voters in Ward 6 had the same political power as 10 voters in the city’s other wards.

While a few states have outlawed prison gerrymandering on their own, responsibility for ending the practice permanently and nationally lies with the Census Bureau.

Some states can prevent prison-based gerrymandering by simply counting incarcerated people at their home addresses. But according to an analysis by the Prison Policy Initiative, some states are prohibited by law from adjusting census data when drawing district lines. In other words, the principle of one person one vote will continue to suffer until the Census Bureau changes the way it counts prisoners.


by Peter Wagner, July 15, 2016

Of the 155 comments submitted to the Census Bureau in 2015 calling for incarcerated people to be counted at home in the next Census, two letters from residents of rural upstate New York are notable because they discuss how the county governments in this prison-heavy region of the state consider the question of whether a prison cell is a residence.

Dan Jenkins wrote about Franklin County’s view that a prison cell is not a residence:

I live, since the late 1990’s, in Franklin County, New York, a rural county that has a large prison population. Prisoners are not residents of our community as they originate outside of our community, they have no interaction with our community and immediately leave the community when their sentences expire or when the Department of Corrections chooses to transfer them elsewhere. Enumerating these populations as part of our community forces our community to choose between either: (1) rejecting your counts, or (2) using census data that dilutes the votes of most of our community’s residents to the benefit of the few who live immediately adjacent to the prison.

I have been concerned about the implications of your “residence rule” for democracy within rural communities since the 1990 Census when I was a resident of another upstate New York county which similarly hosted a large correctional facility. I, and many of my Jefferson County neighbors were concerned and raised public awareness that relying on your counts resulted in county apportionment that diluted the votes of residents who did not leave near the prisons.

In the late 1990’s, I moved to Franklin County and was again involved as a citizen activist in redistricting. There, I was pleasantly surprised to learn that I would not need to organize a post-2000 lawsuit against Franklin County because my county was already committed to modifying your census data to remove the prison populations and avoid what is now commonly called “prison gerrymandering.” […]

What should be obvious from my letter is that I, along with the elected leaders of my county, were concerned that including the prison population where the Census Bureau counted it but where those people — 10% of our county’s Census population — do not reside would have a vote dilutive impact on the other parts of our county. We simply did not want to draw a county legislative districts that had a preponderance of incarcerated people. Such districts would have given every county resident living near the prisons much more voting power than the other residents of the county.

Having considered the effects of “prison gerrymandering” on rural counties that host prisons, I and many of my neighbors came to the obvious conclusion that the Census Bureau’s counts are inaccurate in so far as the Bureau counted incarcerated people as residents of the prison locations. As a result, we removed the prison populations from the one set of legislative districts that we could control — our county districts.

And here I feel I need to clarify our approach, given current statements from some plaintiffs in the current Texas case about excluding some non-voting populations from redistricting.

For us, in Franklin County, the decision was not whether to count incarcerated people, but where they should rightly be counted, which we think is at their home of record. We had no right to count prisoners as local constituents, they relied on the representative services of their home legislators, and there is nothing that one of our county legislators could do for them.

Removing the prison population was the best we could do because we lacked authority over the redistricting bodies of the New York City Council, the Albany City Council and the other home locations of the incarcerated people. As I, along with two neighbors wrote to you in our July 9, 2004 comment letter: “We know of no complaints from prisoners as a result, as they no doubt look to the New York City Council for the local issues of interest to them.”

Thankfully, New York State took things one step further with the passage of Part XX (ending prison gerrymandering at the state and local levels) which made sure that all state prisoners are counted in the appropriate locations. This is legislation that I and many of my neighbors supported. And while I support Part XX, I must note that the law had one shortcoming that only the Census Bureau can fix: Part XX did not reallocate federal prisoners to their homes; it simply removed them from the count.

The Census Bureau is the only entity which can provide a complete solution to the redistricting confusion caused by the current “usual residence rule.” I urge you to adjust this policy and count all prisoners at their homes of record in the next federal Census.

Martha Swan, from the neighboring county of Essex, also wrote that her county doesn’t consider a prison cell to be a residence. Swan explains that the county concluded that using the Census Bureau’s prison counts to draw county legislative districts results in vote dilution for other parts of the county, and went as far as to write that conclusion into local law:

I am writing … to urge you to count incarcerated people in their home districts.

My name is Martha Swan and I live and work in Essex County in northern New York, near the border with Canada. I live in the state’s largest and most sparsely populated Senate district. My Senate district has more people incarcerated in state prisons than any other district in the state.

I would like to focus my comment on documenting that my county does not consider incarcerated people to be residents of our county. There are 6 counties in my senate district. Four of those counties contain prisons, and all 4 choose not to count the prison populations when drawing county districts or designing weighted voting systems.

My county, Essex, justified its decision in its local law with a lengthy discussion on the practical and legal grounds of why inmates are not residents of the county. While I understand that more than 200 counties across the United States do this as well, I have read that my county was the one of the few to put its reasoning in writing and then vote it in to law.

For that reason, I would like to share with you part of Essex Local Law No 144 of 2012:

“Persons incarcerated in the state and federal correctional institutions have been convicted of criminal acts constituting felonies and their presence in Essex County is considered involuntary. These incarcerated persons: are not residents of the County since they are here involuntarily and can be relocated by the Commissioner of Corrections at the latter’s discretion; are not entitled to vote and thus are not voters in Essex County; and receive no services from the County – except when they commit new criminal acts and are brought before County Court, or when they are entitled to assignment of counsel as indigents in connection with parole hearings under New York Executive Law Article 12-B. Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which they are located.

“The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.”

Very similar language was also used in Essex County Local Law No. 1 of 2003. Recognizing that you may not have ready access to my small county’s local laws, I have attached the 2003 and 2012 laws to this letter.

I urge you to follow the lead of Essex County New York and count incarcerated people as residents of their pre-incarceration addresses and not as residents of my county.

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