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Redistricting expert: local politicians don’t represent people incarcerated in their districts, so why does the Census count them there?

by Harrison Stark, July 8, 2016

On July 18, 2015, Todd A. Breitbart submitted a letter commenting on the Census Bureau’s May 20, 2015 Federal Register Notice regarding the 2020 Decennial Census Residence Rule and Residence Situations. Mr. Breitbart, who has substantial experience in redistricting and population assessments in New York and California, contends that “[p]rison inmates should be counted as residents of their permanent home addresses, not at the places of incarceration.” Mr. Breitbart further compares the Census Bureau’s treatment of prisoners to other transient populations and argues that the Census Bureau is uniquely positioned to collect the data necessary to change their existing practice for counting imprisoned people.

Specifically, Mr. Breitbart compares the Census Bureau’s treatment of prisoners to the treatment of college or university students and individuals travelling for business or pleasure. Noting that students typically are counted at their temporary addresses (i.e., their schools), while travelers are counted at their permanent addresses (i.e., their homes they return to), he explains that the Bureau deviates from a strict “eat and sleep” interpretation so both groups can be counted at residences they voluntarily call home.

Moreover, Mr. Breitbart contends that there is a democratic deficit for the prisoners who cannot claim representation in the same way as students and travelers. As Mr. Breitbart points out, “members of Congress and state legislators, in furthering the interests of the permanent residents of their districts, also seek to further the interests of the students and visitors.” Indeed, representatives expand and support institutions of higher learning—for the benefit of students—and seek economic prosperity in their districts—to attract travelers. However, “[i]n contrast, no Congress member or state legislator seeks to represent the interests of the prisoners incarcerated in his or her district… To the degree that the prisoners enjoy representation in Congress or state legislatures, it is only from the representatives of the communities where they left behind their families and friends, to which they will eventually return, and where they may once again be voters.”

Moreover, Mr. Breitbart argues that urban communities like New York City, in particular, “[are] disadvantaged by the census rules relating to both prisoners and visitors.” As Mr. Breitbart shows, when New York reallocated its count of prisoners from “their places of incarceration” to “their permanent home addresses [in 2010], the population of New York City showed a net increase of 21,082,” a conservative number that did not take into account federal data. Mr. Breitbart furthered notes that “[New York C]ity’s population is permanently swollen by hundreds of thousands of visitors, but these persons are not counted here… if visitors are to be counted at their permanent home addresses, not where they are sleeping on Census Day, there is an even stronger argument for applying that principle to prisoners.”

Mr. Breitbart contends that the Census Bureau can change its practice of counting imprisoned people in the wrong place seamlessly and effectively. He explains:

[W]e now have extensive experience demonstrating that it would be quite practicable to count prisoners at their permanent home addresses. The states of New York and Maryland successfully adjusted their population databases for the 2010-12 redistricting without a huge investment of resources… These experiences can provide a model, and should lead the Census Bureau to reconsider its previous view that it would be prohibitively expensive to do what New York and Maryland accomplished.

According to Mr. Breitbart, the Census Bureau is uniquely situated to implement a change to how it counts imprisoned people. While individual states faced obstacles in collecting prisoner address information because of confidentiality concerns, Mr. Breitbart suggests that “the Census Bureau may well be able to address [the Federal Bureau of Prisons’] concerns about preserving confidentiality” and “will be in a far better position than the states, individually or collectively, to allocate prisoners to the census blocks of their permanent home addresses.”

Finally, Mr. Breitbart states: “Prisoners should be counted at the homes to which they will eventually return, where they left behind their families and friends, where they are represented by elected officials, and where they may once again be voters.”

Notwithstanding Mr. Breitbart’s recommendation, the Census Bureau has proposed to maintain its policy of counting incarcerated individuals as residents of their prison facility addresses rather than of their permanent home addresses.

Harrison Stark, a 2L at Yale Law School, is a 2016 summer intern at the NAACP Legal Defense & Educational Fund, Inc.

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