Wagner testimony at Congressional field hearing on Census group quarters count
by Peter Wagner, February 25, 2010
Testimony of Peter Wagner
Executive Director, Prison Policy Initiative
Information Policy, Census, and National Archives Subcommittee of the
Oversight and Government Reform Committee
February 22, 2010
Thank you, Chairman Towns and Chairman Clay, for inviting me here today. I am Executive Director of the Prison Policy Initiative, a non-profit, non-partisan research organization-based in Massachusetts. For the last decade, we have studied how the U.S. Census counts people in prison and worked to quantify the policy and legal implications flowing from those technical decisions.
Fairly and accurately counting the prison population matters. On Census day, there will be more than 2.3 million people behind bars in this country. That is a population larger than the 4th largest city in this county, larger than 15 individual states, and larger than the combined populations of our 3 smallest states. As this population disproportionately consists of African-American and Latino men, critical civil rights issues are at stake in a fair and accurate count of this population.
In this testimony I would like to explain some of the distortions in representation that result from the Census Bureau’s current practices regarding how incarcerated populations are counted, and the long-term changes that are needed to fully address the problem. At the same time, I would like to commend the Census Bureau for recently agreeing to an initial step that will provide more timely data to state and local governments that wish to make their own adjustments for a fairer and more accurate count.
The Census Bureau counts people in prison as residents of the correctional facility. The procedure is that the Bureau contacts correctional facilities prior to the Census, explains what is required and works out the method and timing of the count with the warden or the state Departments of Correction. The Bureau strives to use individual enumeration via census forms wherever possible, and as a last resort uses administrative records to capture the age, sex, race and ethnicity of the population.
This is, to a large extent, the method and procedures that the Census Bureau has used since the first Census in 1790. And while it is the procedure that will be used in the 2010 Census, there is a growing concern in state and local governments that changes will be required for the Census in the future.
Specifically, the Census Bureau’s 200-year-old decision to count incarcerated people as residents of the census block that contains the prison creates problems for redistricting at the state and local level. Most states have constitutional clauses or election law statutes which declare that incarceration does not change a residence. The fact that incarcerated people tend to be incarcerated in large facilities far from their homes means that a large population is being counted in the wrong place.
When used for redistricting, these prison counts can have a significant effect. One state legislative district in Maryland is 18% prisoners; a state legislative district in Texas is 12% prisoners; and 15% of one Montana district is incarcerated people imported from other parts of the state. Forty-eight states bar people in prison from voting, and state residence laws make it clear that even if people in prison could vote, they would need to do so back at home via absentee ballot.
As a result, when states rely on Census Bureau prison counts to draw districts, they inflate the weight of a vote in the prison district at the expense of every person in every district that does not contain a large prison. Indeed, the Census Bureau’s own advisors at the National Research Council wrote in their 2006 report, Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census, “The evidence of political inequities in redistricting that can arise due to the counting of prisoners at the prison location is compelling.”
This problem is even more significant in rural counties and cities that contain prisons. Their legislative districts, county board districts and city council districts are smaller, so a single prison can have a massive effect. The most well known example is in Anamosa, Iowa, where the state’s largest prison is located and where it constituted 96% of the city’s second ward. In 2005, there were no candidates for election, and the winner won with two write in votes, one cast by his wife and another by a neighbor. Citizen outcry about granting some residents 25 times as much political influence over the future of the city just because they live next to the prison led to changing the form of government in the city to eliminate the districts. I understand that one of the first persons to sign the petition for change was the representative of the prison district.
Anamosa is an extreme example, but far from unique. Waupun, Wisconsin has a city council district that is 79% incarcerated persons. Lake County Tennessee has a county board district that is 88% incarcerated persons. And the city of Rome, New York has a city council district where half of the population is not residents of the city, but people incarcerated in state prison facilities.
The Prison Policy Initiative, along with our allies, have discovered that many dozens of counties and local governments are concerned about distortions in representation caused by treating prison populations as residents of the prison community. Indeed, when the issue of using prison populations to change electoral representation in local government is brought to the public’s attention, there is a huge outcry, and with one exception in the entire nation, the government immediately reverses course and decides to revise the census counts and base districts on the actual population of the community.
More than 100 rural counties and municipalities currently ignore the prison populations when drawing districts or designing weighted voting systems. Some do so on their own, and others do so with the support of state government. In Mississippi, the attorney general directs counties to remove prison populations. In Colorado, state law requires counties to ignore the prison populations. Virginia law encourages counties with large prison populations to ignore the prison populations, and New Jersey law requires school districts to be drawn without regard to prison populations.
However, on a technical level, this process of revising the Census data to remove prison populations has been difficult and error-prone for the simple reason that the Census Bureau’s prison count data was traditionally published too late to be used in redistricting. Although it sounds surprising, it is extremely difficult to separate prison populations from resident populations in the PL94-171 redistricting data without the assistance of the Bureau. Counties were forced to use creative ad-hoc methods of identifying the prison populations for the purposes of drawing fair districts, and due to their larger size, states were unable to even consider taking such steps.
That will be very different in 2010. For the first time, the Census Bureau will be providing assistance to state and local governments in making adjustments to the prison counts. In May 2011, less than 2 months after the redistricting data is published, and before most states and counties have completed redistricting, the Census Bureau will publish the group quarters counts, including correctional facilities, for each Census block in the nation.
This group quarters file will be the same file as will later appear in Summary File 1 as Table P41:
Universe: Group Quarters (GQ), Population by GQ Type Total: Institutionalized population for four categories of GQ Correctional Facilities for Adults Juvenile facilities; Nursing/Skilled nursing facilities; Other institutional facilities; Noninstitutionalized population for three categories of GQ College/University student housing; Military Quarters; Other noninstitutional facilities
This change sounds small, but the implications for data users are large. Many data users in state and local government — especially local government — have long desired a way to identify prison populations in the redistricting data. The Census Bureau has, in consultation with Chairman Clay and voting rights advocates, found a way to empower data users with the data they need to correct distortions in representation that result from counting prison populations as residents of the prison community when drawing voting districts.
One question that frequently comes up is whether a change in current practices on how incarcerated persons are counted would affect how federal funding is distributed. While decisions about where to count prison populations are important from the standpoint of fair representation, this issue actually has little impact on distribution of federal funding to communities. Most federal funding based on Census data consists of block grants to states, meaning that the federal government gives money to states based on their total population. Once the states receive the federal money, they are free to distribute it as they see fit within their own borders. For state block grant purposes, in other words, it does not matter where within any given state an incarcerated person is counted. Policy in this area should be based on issues of fair political representation and not on concerns about funding distribution.
Finally, despite some press reports to the contrary, the changes recently announced by the Census Bureau do not mean that the Bureau will be counting incarcerated people at home in 2010. Rather, by agreeing to publish one data table early in order to make incarcerated people easier to see in the data, the Bureau has given governments — particularly rural county governments — a choice they did not have before. I commend Director Groves and Chairman Clay for developing this important interim solution to give data users the choices they need to draw fair districts based on accurate data.
 See letter of Acting Census Bureau Director Thomas L. Mesenbourg to Peter Wagner, January 16, 2009. Mr. Mesenbourg was responding to letters written on May 27, 2008 and November 24, 2008 in regards to notices published in the Federal Register on March 26, 2008 and September 24, 2008.
 For example, New York’s Constitution, art. 3, S 4, provides: “For the purpose of voting, no person shall be deemed to have gained or lost a residence . . . while confined in any public prison.” See Brenda Wright and Susan Gerson, “A prison is not a home: The Lesson of People v. Cady,” available at http://www.demos.org/publication.cfm?currentpublicationID=B1EBEA26-3FF4-6C82-507573810BDBA00D .
 See Prison Policy Initiative, “Select counties and cities that adjust
Census data to correct for the prison miscount,” available at http://www.prisonersofthecensus.org/factsheets/select_cities_and_counties.pdf
 For more information on this point, see Prison Policy Initiative, “The Census Bureau’s Prison Miscount: It’s about political power, not funding,” available at http://www.prisonersofthecensus.org/factsheets/ny/political_power_not_money.pdf .