“You don’t live here (except on Census day),” say local politicians
by Peter Wagner, February 15, 2010
With the Census almost here, some politicians have drawn their attention to defending the Census Bureau’s practice of counting incarcerated people as residents of correctional facilities in their districts. The politicians’ aim is to claim as many people in the area as residents of their district. Claiming more people — even if they can’t vote and are legal residents of other parts of the state — can be a benefit at redistricting time. Having an artificially high population allows them to create districts with fewer real constituents to be accountable to.
The politicians’ defense of the Census rule for prison counting doesn’t hold water. One argument they make goes like this: Sometimes people in prison use the local hospitals, so we should be able to claim them as residents. But people who are passing through town and staying in local hotels temporarily use the local hospitals too.
As with every other group the Census counts, what matters is whether people in prison are considered residents of the community that contains the prison. Except for incarcerated people, the residence rule the Census uses consistently results in counting people at their homes.
I’ve frequently written about the New York State Constitution’s definition of residence, which explicitly says that confinement in a public prison does not change a person’s residence. Despite the official constitutional definition, I’ve also looked to see whether county officials actually consider incarcerated people to be residents of their communities. And the result?
When the Census is not underway and the news cameras are not around, no politician treats the people in local prison cells as residents or constituents.
For purposes of local representation, the prisons, and people they contain, are disregarded. The majority of counties with prisons in New York refuse to include prison populations when drawing county legislative districts or designing weighted voting systems for county government. And what about county services?
Most services and benefits that are available only to residents are things that by the nature of their incarceration, people in prison couldn’t take advantage of. We’ll never know if a town with a prison and a residents-only beach would welcome an incarcerated person to swim. Other laws prevent incarcerated people from wandering freely down to the beach. There is, however, one local right that an incarcerated person could exercise if they were a resident of the prison county. The right to divorce in local courts, a right accessible to all county residents, is frequently, if not universally, denied to people whose only tie to the county is incarceration.
When incarcerated people petition the local court for a divorce, they are rejected because they are not residents and instructed to file for divorce in their home county. This is true even if the incarcerated person was married in the prison. (See Washington County Chief Clerk Kathleen M. LaBelle to Troy Johnson, Feb 27, 2003 and March 21, 2003.) In June 2009, Acting Supreme Court Justice Patrick R. McGill in Clinton ruled that despite concluding that the incarcerated person seeking divorce was married at the correctional facility in the county 3 years prior:
“The plaintiff is an inmate at the Clinton Correctional Facility and seeks poor person status… The plaintiff has not established however, that he is a resident of the County of Clinton as the result of any voluntary decision on his part; rather, he is merely present in this county by virtue of his incarceration and may be transferred to a facility in another county at any time.
And in August 2009, Judge Robert M. DiBelle denied a request from a person incarcerated in Sing Sing to file for divorce as a poor person in the Westchester County Court. Proceeding as a poor person would have waived the fees, but the Judge ruled that incarceration in the county was not residence in the county:
“Upon entering the prison system, a person generally retains his prior residence for purposes of litigation…. Plaintiff does not establish that his residency, prior to entering the prison system, was in Westchester County. Additionally, the record reflects that the defendant currently resides in Suffolk County.”
And New York’s Appellate Courts have agreed, rejecting a motion for a person incarcerated in Saratoga County to proceed as a poor person in Saratoga’s County court:
“Here, plaintiff was a resident of Nassau County prior to his incarceration. His current presence in Saratoga County is not the result of a voluntary decision on his part. He is there at the discretion of the Commissioner and can be involuntarily transferred to a facility in another county at any time…. We conclude that the Supreme Court did not abuse its discretion in determining that plaintiff failed to establish that he was a resident of Saratoga County.” Beckett v. Beckett, 520 N.Y.S.2d 674, 675, (N.Y. App. Div. 1987).
Every 10 years, politicians with prisons in their districts disingenuously claim incarcerated people as residents to pad their districts and increase the voting power of their actual residents. For the rest of the decade, however, they do not consider people in prison to be residents of their communities.