Home is where the cell is? Only to the Census Bureau

by Peter Wagner, May 31, 2004 Link

In the words of U.S. Department of Agriculture demographer Calvin Beale: “A rural prison is a classic ‘export’ industry, providing a service for the outside community.” Although rural counties contain only 20% of the national population, they have snapped up 60% of new prison construction. Like export processing zones in Third World countries, even the raw material is imported for final manufacture. In New York, for example, only 24% of prisoners are from the upstate region, but 91% of prisoners are incarcerated there.

The Census Bureau counts the nation’s mostly urban prisoners as if they were residents of the mostly rural towns that host the prisons. This methodology infects the data used for legislative redistricting and results in a dilution of the voting strength of the communities that have large numbers of people in prison. States with large prison populations violate the 14th Amendment’s One Person One Vote principle when they rely on Census Bureau data to draw their legislative districts.

The growing movement to have the Census Bureau change how it counts the incarcerated is not the first time that people have questioned where prisoners actually reside and then concluded they reside at home. Most states have constitutional clauses or statutes that define residence for incarcerated people to be the place they lived prior to incarceration. Similar rules exist in other contexts, such as determining where a person may file a lawsuit. But no one has summarized the rule and its rationale as clearly as Judge McCree did in a 1973 decision:

It makes eminent good sense to say as a matter of law that one who is in a place solely by virtue of superior force exerted by another should not be held to have abandoned his former domicile. The rule shields an unwilling sojourner from the loss of rights and privileges incident to his citizenship in a particular place….

As will be explained in more detail in next week’s column, prisoners are denied the benefits that accrue to the residents of the prison town because they aren’t residents of the prison town. But when the Census Bureau credits the prison town with the prison’s population, it strips the prisoner’s home community of an important democratic right: the right to be represented in proportion to its numbers.

The Census Bureau has updated its methodology for counting students, the military and other groups in the past. It is now time to update how prisoners are counted.

Sources: Calvin Beale, “Prisons, Population, and Jobs in Non-metro America,” Rural Development Perspectives, Vol. 8, no. 3, 1993; Stifel v. Hopkins 477 F.2d 1116, 1121 (1973).

Census’ transfer of incarcerated population creates legislative stalemate in New York

by Peter Wagner, May 24, 2004 Link

The current legislative stalemate in reforming New York’s drug laws might be the result of a Census Bureau quirk that counts prisoners as if they were residents of the prison town. Senate conference co-chairman Dale Volker is a former police officer opposed to many of the reforms proposed by Assembly conference co-chair Jeffrion Aubry of Queens. Aubry used to lead a social service agency that provided drug treatment.

Something else is reducing the clout of advocates for drug law reform: The U.S. Census. Each Senate district in New York City is missing about 1,800 incarcerated residents, with these residents instead credited to rural districts like Senator Dale Volker’s. One out of every 25 adults in Volker’s district is a prisoner barred by law from voting for or against the Senator. By the time these prisoners complete their sentences and are again allowed to vote, they will be back home in a different district.

The six prisons in Volker’s 59th district contain 8,951 prisoners including 2,391 drug offenders. These bodies swell Volker’s influence in violation of the Constitutional guarantee of one-person-one-vote. Prisons are big business in only a few districts, but every district in the state that sends people to prison sees its clout diminished in the legislature as a result of the Census Bureau’s counting method. Senator Volker has the right to advocate against drug law reform if he wishes, but his political clout should be based on the actual number of his rural constituents, and not on how many of New York City’s drug addicts are temporarily in rural prisons.

Source: Michael Cooper, Republicans and Democrats Clash on New York Drug Laws, New York Times, May 21, 2004 and Peter Wagner, Counting urban prisoners as rural residents counts out democracy in New York Senate Prison Policy Initiative, PrisonersoftheCensus.org December 1, 2003.

Three ways to fix Census counting problem

by Peter Wagner, May 17, 2004 Link

I was recently asked if restoring a prisoner’s right to vote would solve the census counting problem. Personally, I think that would be a good idea, but it would not address the principal problem from miscounting the incarcerated: diluting the votes of prisoners’ home communities.

All states that allow or recently allowed prisoners to vote required them to do so back home via absentee ballot. Most states have constitutional clauses or statutes that say that incarceration does not change a residence. (See for example New York, Arizona, Michigan, Vermont and Maine.) If prisoners were to be allowed to vote, it would be back home. Letting prisoners vote is controversial. Where they would vote is not.

The real victims from the way the Census counts prisoners are prisoners’ family and neighbors — people who have not been convicted of anything. Counting the incarcerated not at their homes but in radically different communities dilutes the votes of all the residents of the home communities.

There are 3 potential solutions:

1. The Census Bureau can change its “usual residence rule” to count prisoners at the address they declare or at their last known address. The Census wrote the rules and they can change them. In the past, the Census has changed how numerous groups were counted, including college students, missionaries, and overseas Americans.
2. States can fix the Census data before conducting redistricting. New York fixed some Census Bureau mistakes that placed some prisons in the wrong rural county. Kansas’ constitution requires that out-of-state students and military be deducted and in-state students and military restored to their homes. The Kansas Secretary of State sends out a survey to the colleges and military bases, and then fixes the data before giving it to the Legislature for redistricting.
3. States can do their own censuses. Many states used to do this. Massachusetts was the last to abolish the state census, in about 1990. New York’s Constitution talks about bringing back the state census if the federal census does not contain the necessary data. Counting prisoners in the wrong part of the state sounds like deficient data to me.

The best solution is the first one. The Census should just update the usual residence rule to count the incarcerated at home. The rule might have made sense in 1790 when incarceration was low and redistricting didn’t exist, but it’s a relic now.