Call your cell a residence?: Do not pass “GO”, go directly to ….

by Peter Wagner, June 28, 2004 Link

In 1894, Michael Cady tried to register to vote using his address at the Tombs Jail in New York City. Jail inmates are allowed to vote, but he was convicted for illegal registration because the NY Constitution says that

“no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

The prosecution’s theory was that while Cady was allowed to vote, he could not vote in the prison district. Even though Cady was planning on staying at the Tombs forever, Cady must have — the prosecution argued — lived somewhere else before.

The highest court in New York agreed:

“The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment … go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.”

When counting the population of each state, the federal Census counts the nation’s mostly urban prisoners as if they were residents of the rural towns with the prisons. When the Census first started in 1790 with the purpose of dividing Congressional seats among the states, that probably made sense. But today one of the biggest users of Census data is state legislatures that must redraw their legislative districts each decade to comply with the Supreme Court’s “One Person One Vote” rule of equally sized districts. Relying on the Census Bureau to count the population sounds convenient and fair, but until the Census Bureau changes how it counts prisoners, using the federal Census data might not be the best way to insure that districts comply with the requirements of the 14th Amendment and how many state constitutions define residence.

If calling your jail cell your residence gets you sent to prison, shouldn’t it also be illegal for rural legislators to call prisoners their “constituents”?

Read more about Michael Cady in Importing Constituents: Prisoner and Political Clout in New York.

14th Amendment is an unintended casualty of Census Bureau’s method of counting prisoners

by Peter Wagner, June 21, 2004 Link

Each decade, the U.S. Census counts the population and then gives the counts to state legislatures for use in redistricting. Legislators take the data and redraw their districts so that each contains the same number of people. Equally sized districts ensure that each person in each district has an equal access to government. This practice is known as the “One Person One Vote” rule and has been the law of the land since the Supreme Court interpreted the 14th Amendment of the Constitution to require districts of equally sized populations in the 1963 case Reynolds v. Sims.

The problem? Based on a methodology developed more than two centuries ago, the Census Bureau counts the nation’s now 2 million prisoners as if they lived at the prison. The method of counting other “special populations” has evolved over time, but the way that prisoners have been counted has gone unquestioned until recently.

Prisoners can’t vote and they are residents not of the prison town but of communities often very far and very different from the prison. While prisons are unquestionably big industries in many rural areas, the temporary physical presence of the prisoners does not make prisoners a part of the prison town in any legal or social sense.

Crediting rural towns with the prison population reduces the number of real rural residents required for a district. This boosts the weight of rural votes while diluting the strength of a vote in the prisoner’s home district.

When the Supreme Court required state legislative districts to be divided on an equal population basis, it explained its rationale. “[L]egislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” The principle is that “[T]he weight of a citizen’s vote cannot be made to depend on where he lives.”

Prisoners are external populations that are not “traditionally” rural in any sense of the word. Allowing communities to take in populations by force, just to benefit at the state legislature, violates any sense of equal protection or fundamental fairness.

As Rose Heyer and I argued in the Too Big to Ignore: How counting people in prisons distorted Census 2000 report, counting prisoners this way unnecessarily complicates the work of anybody who wants to draw useful conclusions from Census data. But it’s not the Census Bureau that is violating the 14th Amendment here. Rather, the guilty party is state legislators that rely on federal Census counts to divide districts among their state populations.

In general, the Census Bureau does a great job counting the country. It is unfortunate that a population that should be so easy to count — state governments count their prisoners multiple times each day — creates so many problems for the users of Census data. States that wish to rely on the Census Bureau’s otherwise excellent data and comply with the U.S. Constitution’s One Person One Vote principle would be well served to ask the Census Bureau to update how it counts the incarcerated.

To do otherwise is to damage the 14th Amendment.

Prison town legislators represent prisoners’ interests? Not quite.

by Peter Wagner, June 14, 2004 Link

On June 7, talks between the New York State Senate and the Assembly on how to best reform the draconian Rockefeller Drug Laws broke down. Publicly, the dispute is over ideological disagreements, but an obscure Census quirk that counts prisoners as residents of the prison’s legislative district may be responsible for distorting how the debate is framed.

The Assembly wanted to reduce a broad range of drug sentences while the Senate wanted to focus only on the most extreme sentences. Previous columns (May 24, 2004 and December 1, 2003) have profiled the district of the Senator’s lead negotiator, Dale Volker. This column examines the district of another member of the Senate’s delegation to the conference committee, Crime Committee Chair Senator Michael Nozzolio.

The 54th District Seneca Falls Republican explained the Senate’s perspective at the start of the meetings: “Our focus is on the victim, not the drug dealer.” The Assembly members took the opposite approach, arguing that drug crimes are victimless crimes and should have sentences shorter than those imposed for violent acts.

An analysis of Senator Nozzolio’s district suggests that his opposition to a thorough repeal of the Rockefeller Drug Laws may not lie just in ideology but in an obscure Census quirk that counts prisoners as if they were residents of the prison town. Because 65.5% of New York State’s prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This swells the political power of upstate legislators and their real constituents while diluting the clout of New York City’s residents.

Senator Nozzolio’s district contains 3,551 prisoners, 1,105 of whom are imprisoned for a drug offense. Almost two-thirds (2,203) of the prisoners incarcerated in his district admit to drug use prior to incarceration. More than two-thirds (2,421) are from New York City or its suburbs. Few if any originate in his district, but all are counted as residents for the purposes of the Census and redistricting.

But Senator Nozzolio can safely ignore these constituents because New York State bars people in prison from voting. Districts are only drawn after the decennial Census, so a drop in the prison population would leave the shape of Nozzolio’s district unchanged until 2010. But the district’s economy would be in deep trouble if the prison population dropped further. More than 10,000 people work in the prisons in his districts.

The 14th Amendment requires each district to be drawn to contain the same number of people to ensure that each resident has equal access to government regardless of where she or he lives. Counting prisoners as if they lived in the prison district unconstitutionally amplifies the voices of the prison workers in the state capital, while diluting the votes coming from the prisoner’s home communities.

In order to change the electoral outcomes in favor of the upstate areas, the New York Senate deliberately drew their rural districts to contain fewer people than the urban districts. The fact that the Census Bureau credited the upstate region with the New York City’s prisoners just makes the problem worse. If the prisoners had been counted in the right place, Senator Nozzolio’s district would be missing 6% of its required population, while districts in Queens would have 4.6% too many people.

Said another way, every group of 90 prison guards and their neighbors in Nozzolio’s district gets as much political clout in Albany as 100 prisoners and their neighbors back in Queens. No wonder drug reform is stalled again in New York.

Source: Statistics from Importing Constituents: Prisoners and Political Clout in New York and my own analysis of Census 2000, NYS DOCs data and Senator Nozzolio’s new district.