If prisoners could vote, they would vote at home, not in the prison town

by Peter Wagner, December 15, 2003 Link

The Census counts prisoners as if they were residents of the prison town, but if prisoners could vote, they would vote at home. This isn’t just a matter of choice, it’s one of law.

Two states (Vermont and Maine) let prisoners vote and, until recently, two additional states (Utah and Massachusetts) did as well. Most prisoners didn’t vote, but when they did, each state required prisoners to vote not at the prison, but at home. An examination of how the four states required prisoners to vote at home is illustrative of how the question of prisoner residence should be treated for purposes of redistricting and representation.

The Vermont Secretary of State describes the procedure requiring prisoners to vote at home:

“2. Prisoners Register To Vote Where They Last Lived. A person in a correctional institution must register to vote in the last town in Vermont that the person resided in prior to incarceration. 17 V.S.A. §2121 and 2122(a). The statute provides that ‘a person can neither gain nor lose residency…while in a correctional institution.’ For example, if a person resided in Rutland, but is now incarcerated in Newport, the person must register to vote in Rutland. There is also a more specific provision in 28 V.S.A. §807 that states that a person cannot register to vote in the town where the correctional facility is located. While some attorneys consider this provision to be unconstitutional, it has not been challenged in court.”

Maine says that a correctional facility is not a residence:

“14. Persons incarcerated in correctional facilities. The residence of a person incarcerated in a correctional facility, as defined in Title 34-A, section 1001, or in a county jail does not include the municipality where a person is incarcerated unless the person had resided in that municipality prior to incarceration.

“A person incarcerated in a correctional facility may apply to register to vote in any municipality where that person has previously established a fixed and principal home to which the person intends to return.”

In Massachusetts, prisoners could vote until a constitutional amendment disenfranchised them in 2000. Prisoners were required to vote at home, except — at least through 1983 — in extremely limited circumstances prisoners could rebut the presumption that their residence was unchanged and prove that their new residence was at the prison. In a 1978 case, the Supreme Judicial Court upheld the town of Norfolk’s acceptance of local registration for only 2 of 621 prisoners in the town. (The law from 1983 to 2000 will be the subject of a future fact of the week.)

In Utah, until their disenfranchisement in 1998, prisoners were required to vote in the jurisdiction of their last residence. The Legislature created this requirement in 1981, after residents of Draper, Utah feared that prisoners could elect one of their own mayor of the newly incorporated rural prison town. As a result, longtime Utah prisoner Ray Dodge “had to list his voting address as an empty lot in Ogden where he once lived in a home with his mother before he was imprisoned in 1965. His mother died, the home was torn down and he has no ties to Ogden but the amended law requires him to vote in [Ogden].” Dodge’s situation was probably unique, but this one odd result was clearly preferable to pretending that thousands of prisoners were residents of the prison town.

If it made sense to require prisoners like Dodge to vote somewhere other than the prison, it also makes sense to count them somewhere other than the prison for purposes of redistricting.

Quotation sources:

Vermont: Vermont Attorney General Opinion, May 2003, #2, see also May 2001, #22.

Maine: Title 21-A, §112, p. 14.

Utah: Brian Maffly, Utah Cons Lose Their Liberty, Not Their Vote, Salt Lake Tribune, Apr. 7, 1997 p 1.

Prior to 1990 Census, prisoners were not explicitly excluded from Census counts

by Peter Wagner, December 8, 2003 Link

The 2000 Census form says to exclude family members incarcerated in correctional facilities.

While the Census’ usual residence rule has evolved over time, some “group quarters” populations such as nursing home residents, prisoners and those inside mental hospitals have, at least since 1850, always been counted at the facility. Whether the local count also excluded these populations — especially that of prisoners — is open to question.

Prior to 1960, the Census was conducted entirely by enumerators who traveled to individual homes and institutions. Enumerators were told in 1850 that the “inmates of a hotel, jail, garrison, hospital, an asylum, or other similar institution, should be reckoned as one family.” In 1890, the forms were changed so that the enumerator could write the address of the family home, or the name and address of the institution on the top and then proceed in identical fashion for family and prison.

Prior to 1960, the Census relied entirely on door-to-door enumerators such as this man in 1950. (Photo: Census Bureau)

While counting group quarters populations was probably quite easy, it is unclear whether the Census was successful in keeping families from also reporting family members who were in the military, in mental hospitals or in prison.

Today, the count is conducted primarily through the mail. Each household is given instructions on who to count and who to exclude, and it fills out the form as a household.

The 2000 Census form instructed residents to exclude prisoners from the count of their household. But the language on who to include and exclude has evolved over time as a result of changes in both in the Census Bureau’s priorities and in the prevalence of incarceration.

The current question starts “How many people were living or staying in this house, apartment or mobile home on April 1, 2000?” Prisons were not explicitly mentioned on the form until 1990, and the questions on some of the early forms imply that prisoners should have also been counted locally.

Who to include?

From 1850 to 1950 the Census forms were primarily about inclusion, mentioning exclusion only in the context of not counting people who died between Census day and the date the form is completed. If a prison is in an enumerator’s district, the written instructions required inclusion in the count, but there was no similar directive to exclude prisoners who originated in their district and were incarcerated elsewhere. Furthermore, the instructions on the forms used the legal terms of art “abode” and “residence” meaning the place that people choose to be, possibly encouraging households to report temporarily absent prisoners as a part of the “family”:

1850-1880

Include: “The name of every person whose usual place of abode on the 1st day of June, [year], was in this family.”

1900-1930

Include: “Name of each person whose place of abode on April 1, [year], was in this family.”

1940

Include: “Name of each person whose usual place of residence on April 1, 1940, was in this household. Be sure to include: 1. Persons temporarily absent from household. Write ‘Ab’ after names of such persons….”

1950

Include: “What are the names of all other persons who live here?”

Who to exclude

In the 1980 and prior Censuses, families were not explicitly told to exclude prisoners from the count. The 1980 Census was the last Census taken before incarceration rates began to skyrocket.

Starting in 1960, the Census began to rely on self-enumeration on forms delivered through the mail. Instructions on who to count became more explicit in part because in-person enumerators were being eliminated, and because the Census was becoming more sophisticated and required more accurate results. Although it’s not mentioned on the 1950 form, the enumerator instructions for 1950 reflect the first exclusion: college students living away from the family home will be counted at college. Starting in 1960, the forms started to list groups to exclude, although it would be another 30 years before prisons were explicitly mentioned:

1960

Exclude: “Persons away in institutions, such as a sanitarium, nursing home, home for the aged, mental hospital. “

1970-1980

Exclude: “Any person away from here in an institution such as a home for the aged or mental hospital”

1990

Exclude: “Persons who are away in an institution such as a prison, mental hospital or a nursing home.”

2000

Exclude: “People in a correctional facility, nursing home or mental hospital on April 1, 2000″

The 1990 census was the first to explicitly instruct that prisoners were not to be counted at home. Why? Prior to the 1990 Census, incarceration was a relatively rare occurrence and probably not worth cluttering up the form with its specific inclusion. Incarceration was low and stable from the beginning of the statistics until about 1980, generally ranging between 95 and 120 prisoners per 100,000 residents. Prior to 1980, the incarceration peak was back during the Great Depression in 1939 with 137 prisoners per 100,000 residents.

In 2001, the United States incarcerated 470 prisoners for every 100,000 residents. If incarceration had remained infrequent, it is unlikely the Census would have needed to change the instruction, and it’s unlikely that there would be enough prisoners to make a difference in the statistics or redistricting.

Counting urban prisoners as rural residents counts out democracy in New York Senate

by Peter Wagner, December 1, 2003 Link

The inmates at Attica prison in western New York state are represented in Albany by state Sen. Dale Volker, a conservative Republican who says it’s a good thing his captive constituents can’t vote, because if they could, “They would never vote for me.” …

Senator Volker made his career pushing prison expansion and the criminalization of drug use. He calls himself the “Keeper of the Keys” for his control of where new prisons are built. Because the U.S. Census counts prisoners where they are incarcerated, Volker gets to include the prisoners when redrawing his district lines each decade to ensure that he has the same population as other districts. Equal-sized districts are necessary to ensure that all citizens have an equally weighted vote.

Counting prisoners where they are incarcerated, and not where they are from, undercuts this one person one vote policy. Look at the “constituents” in Senator Volker’s district:

Officially, the district is overwhelmingly white (94.2% White, 2.13% Black), but even that little diversity is from the prisoners. The 8,951 prisoners are 77% Black or Latino. Without the prisoners, the district would be 96.5% White and 0.64% Black.

Prisoners are not an interest group native to the rural 59th district. Eighty-five percent of the prisoners come from urban or suburban areas: New York City (53%), suburban New York City (8.6%) or the upstate urban cities (23%). The remainder come not necessarily from Volker’s rural district, but from all the state’s rural areas combined.

The 213,402 free adults in the district live with 71,903 children. The 8,951 prisoners, on the other hand, report having at least 11,358 living children, but they probably get to see them infrequently. The driving distance between the most well-known prison in the district, Attica, and New York City, is 369 miles.

Politically, the prisoners and the real constituents don’t have much in common. Prisons are a major industry in the district, with an estimated 3,000 people working directly for the prison system. The 8,951 prisoners, including 2,391 incarcerated for drug offenses, presumably would support alternatives to incarceration including treatment for drug addiction over expensive incarceration.

Rural prison towns do not share a “community of interest” with urban prisoners or their loved ones. In fact, they are often in contradiction. Senator Dale Volker told Newhouse News Service he does get letters from prisoners with a variety of complaints, but that his real attention is directed toward corrections workers, with whom he has forged strong relationships.

There is nothing necessarily wrong with a Senator preferring one group of constituents over another. But the fact that Senator Volker treats prisoners as if they didn’t actually live in the district suggests both the problem and the solution. Urban prisoners are not a part of rural districts and they should be counted among their own constituency: at home.

Senator Volker quotes from Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict Newhouse News Service, March 12, 2002; statistics from Importing Constituents: Prisoners and Political Clout in New York and my own analysis of Census 2000, NYS DOCs data and Senator Volker’s new district.