Federal appeals court urged to consider census-based dilution of minority voting strength when weighing legality of prisoner disenfranchisement scheme

by Peter Wagner, January 31, 2005 Link

The National Voting Rights Institute and the Prison Policy Initiative have filed a brief with the U.S. Court of Appeals for the Second Circuit highlighting the New York State legislature’s racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in upstate prisons. The Court of Appeals for the Second Circuit is hearing the case of Muntaqim v. Coombe, a case brought by an African-American prisoner alleging that racial disparities in disenfranchisement of prisoners and parolees in New York violate Section 2 of the Voting Rights Act. The friend-of-the-court brief filed by the National Voting Rights Institute and the Prison Policy Initiative argues that the Court should consider the redistricting implications of disenfranchisement as part of the “totality of circumstances” which must be examined under the Voting Rights Act.

New York State is majority White (62%), but its prison population is majority Black and Latino (82%), so disenfranchising prisoners and parolees results in a disproportionate bar to Black and Latino political participation. In their brief, the National Voting Rights Institute and the Prison Policy Initiative provide new information to the court showing how New York State’s disenfranchisement practices combine with its redistricting practices to diminish the voting strength of persons of color and communities not under direct criminal justice control.

In drawing state legislative districts, New York uses Census Bureau data that counts the state’s mostly urban and minority prisoners as residents of the mostly white and rural prison counties rather than as residents of the home communities where they resided prior to incarceration, where they are deemed legal residents for most other legal purposes. Several upstate legislative districts lack sufficient population to meet accepted one-person, one-vote standards without counting disenfranchised prisoners as part of their population base. At the same time, heavily minority districts in New York City would in all likelihood be entitled to additional representation if prisoners were counted as residents of their home communities for purposes of redistricting.

“Section 2 of the Voting Rights Act requires the Court to examine the ‘totality of the circumstances’ when judging the legality of prisoner disenfranchisement,” said Brenda Wright, managing attorney of the non-profit National Voting Rights Institute. “New York’s decision to credit disenfranchised prisoners to largely white counties, rather than their home communities, is a critical example of racial discrimination the court should consider.”

The brief argues that New York’s practice does have one historical parallel that the Court should be disinclined to follow. Says Prison Policy Initiative Assistant Director Peter Wagner: “The practice bears a striking resemblance to the original ‘Three-Fifths’ clause of the United States Constitution, which allowed the South to obtain enhanced representation in Congress by counting disenfranchised slaves as three-fifths of a person for purposes of congressional apportionment.”

In Muntaqim v. Coombe, the Second Circuit has taken the unusual step of granting in banc review by all active judges on the Court, after a three-judge panel initially ruled against the plaintiff and held that Section 2 of the Voting Rights Act does not permit a challenge to prisoner disenfranchisement. The amicus brief of NVRI and the Prison Policy Institute, filed on January 28, 2005, is available in PDF on NVRI’s website at: http://www.nvri.org/about/new_york_state_policies.shtml and in hypertext at http://www.prisonpolicy.org/reports/muntaqim.html.

The National Voting Rights Institute is a nonprofit, nonpartisan legal center. Through litigation and public education, NVRI seeks to make real the promise of American democracy that meaningful political participation and power should be accessible to all regardless of economic or social status. The Prison Policy Initiative conducts research and advocacy on incarceration policy. Among its publications are a report, Importing Constituents: Prisoners and Political Clout in New York (April 2002), which documents how the transfer of a large, non-voting population to upstate prisons, where it is counted as part of the population base for redistricting, artificially enhances the representation afforded to predominantly white, upstate legislative districts.

CONTACT:

Brenda Wright, National Voting Rights Institute (617) 624-3900, ext. 13

Peter Wagner, Prison Policy Initiative (413) 527-1333

Eric Cadora shows how incarceration is concentrated in particular Brooklyn neighborhoods

by Peter Wagner, January 24, 2005 Link

The Importing Constituents: Prisoners and Political Clout in New York report was able to quantify the population loss to New York City from the Census Bureau practice of assigning prisoners residence to the prison location rather than their homes, and the report was able to determine how this benefits up-state prison districts. In 2000, New York City had 43,740 of its residents credited to the communities that contain prisons. As much as 7% of one upstate district’s population is prisoners. Counting prisoners as prison-town residents reduces the number of actual residents in these districts, enhancing the weight of a vote in those prison districts. By extension, this vote enhancement dilutes the votes of residents elsewhere in the state.

We know that compared to the state as a whole, New York City disproportionately sends people to prison, but what about specific neighborhoods in the city? The Importing Constituents report talks of the potential impact on the assumption that prisoners are evenly distributed in the city. Even with that assumption, there was a clear problem in need of a fix. But when the report was written, nobody knew exactly where in the city prisoners came from. The Census Bureau doesn’t collect this information, and the Department of Correctional Services does not publish this information in any more detail than the number of prisoners that come from New York City as a whole. As the Importing Constituents report said, prisoners are very likely concentrated in particular communities. This concentration would mean that specific districts suffer a measurable vote dilution beyond not receiving the same vote enhancement existing in the prison districts.

One recent analysis of prisoner origin in Brooklyn does suggest that prisoners are highly concentrated in origin. As part of a study looking to see where the state spends its criminal justice resources, Eric Cadora used judicial records to map the homes of prisoners from the Brooklyn borough sent to state prison in 2003. He found 35 blocks where more than $1million in state funds were spent to take people out of that community in 2003. Figure 1 is a map of Mr. Cadora’s research as published in the Village Voice. As Cadora used the figure of $30,000 per year to incarcerate someone, each of those 35 blocks would have at least 33 people sent to prison that year. The one “$5 million dollar block” would translate into 167 people that should have been credited by the legislature’s map makers to a single block in Brooklyn. (See Figure 1.) This map isn’t directly translatable to a redistricting analysis, but it does make the very strong case that prisoners are highly concentrated in origin. The clear message is that some communities in Brooklyn lose far more population to prison — and the Census counts of prisoners — than others.

Figure 1. Eric Cadora’s map of high incarceration communities in Brooklyn, New York and expressed in terms of the cost to incarcerate residents of each block. The map was published in the Village Voice on November 16, 2004.

Eric Cadora’s research and map also allows some additional analysis to be made of the communities that see large numbers of people go to prison. Figure 2 is a map of the Black population in Brooklyn. Comparing the two maps, we see that what Eric Cadora identified as the blocks that send large numbers of people to prison are also the same blocks with large Black populations.

Figure 2. Black populations in Brooklyn. Eric Cadora’s million dollar blocks are largely blocks with large Black populations.

The Importing Constituents report showed that the Census Bureau’s method of counting prisoners disadvantages the city of New York to the benefit of predominantly white rural areas. Eric Cadora’s research provides more evidence for what many have long suspected — that incarceration impacts certain disadvantaged communities much more severely than other communities. If we want to accurately count these communities and give them their fair share of political power in the legislatures, then the population of these communities needs to be counted in those communities.

Note: See also Eric Cadora’s earlier analysis Criminal Justice and Health and Human Services: An Exploration of Overlapping Needs, Resources, and Interests in Brooklyn Neighborhoods, [PDF] Urban Institute. January, 2002. That report only goes down to the tract level and includes jail populations as well, but it also creates extremely useful comparison maps of singe parent households, youth concentrations, and people on various public assistance programs. These are largely all co-incident populations.

98% of New York’s prison cells are in disproportionately White Senate districts

by Peter Wagner, January 17, 2005 Link

The Census Bureau counts incarcerated people as if they were residents not of their homes but of the prison’s location. When states like New York ignore their own constitutional requirement that incarceration does not change a residence and use Census data to draw legislative districts, the result is to transfer political power from high incarceration neighborhoods to the areas that contain the prisons.

I’ve previously written about the regional bias implicit in the arrangement. Sixty-six percent of the New York State’s prisoners come from New York City, but 91% of the state’s prison cells are located in the upstate region.

Even more critical is how this impacts the political power of Blacks and Latinos in the state compared to Whites. New York State is 62% White, but 82% of the state’s prison population is Black or Latino.

Virtually all — 98% — of the prison cells are located in state Senate districts that are disproportionately White for the state.

If New York State wants to draw districts that accurately and fairly represent the population of the state, it needs to encourage the Census Bureau to change how it counts prisoners.

Note: The methodology for this article draws its inspiration from Paul Street’s article about Illinois counties: The Color and Geography of Prison [PDF]. This article relies on the new Figure 13 in my 2002 report, Importing Constituents: Prisoners and Political Clout in New York. Consistent with that report and how the New York Legislature and Department of Correctional Services count race and ethnicity, I’ve used the term “White” to mean “Non-Hispanic White” as counted in the U.S. Census. To produce the 98% figure, I calculated from Figure 13 that New York was 62% Non-Hispanic White. I then filtered Figure 13 to show just those legislative districts that were 62% or more Non-Hispanic White, and added up the number of prisoners in each of those districts. The result was 98% of the state prison population in districts that were disproportionately White.