The Constitutional Amendment grew out of Milwaukee Magazine’s coverage of our report:

The Prison Policy Initiative suggests the U.S. Census Bureau should change how it counts people in prison by determining their city of legal residence, or that the state of Wisconsin do its own census of prisoners to adjust the national totals. But so far, neither the Census Bureau nor any states have embraced the idea, citing costs and complications.

Rep. Fred Kessler (D-Milwaukee) offers a quicker solution: Wisconsin should follow the lead of Mississippi, Colorado and New Jersey, and simply not count prisoners for redistricting purposes.

Fuzzy Math: Is the Census Bureau creating unfair politics in Wisconsin? by Evan Solochek, Milwaukee Magazine, March 2008.

Left uncorrected, the growth in Wisconsin’s prison population is poised to get worse after the next Census. As I wrote in October, a new prison in Chippewa County is poised to grant the residents who live immediately adjacent to the prison almost 4 times as much political power as their numbers will warrant.

Rep. Kessler has the right idea. Ideally, the Census Bureau would change where it counts people in prison, but the Bureau has squandered too much of the critical planning time to make the change for the next Census in 2010. But if states act soon, sufficient time remains for an interim solution that would end the practice of giving prison districts unearned influence. All these jurisdictions need to do is plan to ignore the prison populations when drawing the district lines.

His press release is below.

Rep. Kessler Introduces Census Correction Amendment
Would remove incarcerated, disenfranchised felons
from electoral districting data
For Further Information Contact:
Representative Frederick P. Kessler
608.266.5813
June 18, 2009

MADISON – Rep. Frederick Kessler, D-Milwaukee, today introduced a state Constitutional amendment to change the way state and local electoral districts are drawn. If enacted, the amendment would direct that incarcerated felons, who may not vote, also not be counted toward the population of the districts where their prisons are located. Joining Kessler in proposing the amendment are Reps. Spencer Black, Tamara Grigsby, Robert Turner and Polly Williams.

The federal Census Bureau regards prison inmates as “residents” of the prisons where they are held, regardless of any permanent home address and regardless of the length of sentence. This means that a person arriving at Dodge Correctional Institution on April 1, 2010, (the Census date), is counted as a resident of Waupun, even if that person will serve only a year in prison and even if that person lived in Superior before being arrested and plans to return there upon release.

Wisconsin uses federal census data to draw its electoral districts, which must contain an equal number of persons. The Census Bureau policy means that certain districts in Wisconsin in fact have significantly fewer voting-eligible residents than other districts, even though on paper they appear to have equal population. For example, nearly 10% of the population of the 53rd Assembly District consists of prisoners who cannot vote and are unlikely to have any connection to the communities of the District. This malapportionment effectively turns those who happen to live near prisons into “supervoters”: they have more powerful votes and more representation in the Legislature than other Wisconsinites.

The problem is even more pronounced on the local level. Because county and municipal board districts are smaller, the inmate population of even one prison can make up a large percentage of a given district. In Waupun’s Third Aldermanic District, for example, inmates make up 79% of the population. One vote in this district is equivalent to five votes in a district without a prison.

Kessler’s amendment would allow federal census data to continue to be used, but would require that the data be altered to remove disenfranchised, incarcerated felons before districting maps are drawn. The amendment would apply to Assembly and Senate districts as well as county and local board districts. The United States Supreme Court has held, in Burns v. Richardson, 384 U.S. 73, 92 (1966), that states need not include disenfranchised felons in the data used to draw district maps.

At this time, no other state requires the exclusion of prisoners from districting data for state legislative districts, though Oregon, New York and Texas all have legislation pending on the subject. In addition, Virginia, Colorado and New Jersey require or allow correction of census data regarding inmates for the districting of certain local boards, and some municipalities and counties around the nation, and particularly in New York State, alter census data to remove prisoners on their own authority.

More information on the effect of prison inmates on redistricting can be found at www.prisonersofthecensus.com.

In January, I released a report, Phantom Constituents in Maine’s Regional School Unit 13: How the Census Bureau’s outdated method of counting prisoners harms democracy, which identified how the town of Thomaston, Maine, is able to use Census counts of a closed prison to exercise undue influence over a school board.

Each town is given a number of votes in proportion to its population, but because the board used Census Bureau counts that included the now-closed Maine State Prison, they unintentionally gave Thomaston more votes than its population was entitled to. (Unlike the Census Bureau, Maine state law says that incarcerated people remain residents of their home, not prison, addresses.)

Earlier, the Commissioner’s office told the board that the impact of the prison was too small to matter, so our letter reviews the relevant legal precedent and the appropriate way to calculate vote dilution. We found that crediting the prison to Thomaston results in inflating the weight of a vote in that town by almost 9%, which is significantly more than the 5% allowed by Supreme Court decisions. When compared against the weight of a vote in the other towns, the distortion is also larger than the maximum deviation allowed by controlling precedents.

Some members of the school board want to reject the flawed census counts and update their voting system without regard to the prison population. If successful, each resident of the school district would have an equal say over the education of their children.

But before proceeding with changes, state law requires the Commissioner of the Maine Department of Education to declare the current voting system in violation of the principles of one person one vote. The Commissioner has not yet responded to our letter. [PDF]

But a long standing flaw in the Census undermines the basic democratic principle of one person one vote. The Census Bureau counts people in prison as residents of the prison’s town, not their home addresses. The Bureau intends to count these 2.5 million people — a population larger than our 4 smallest states combined — in the wrong place. The result will be a systematic inflation of the political power of districts with prisons while diminishing the vote of everyone else.

Since the importance of the Census Bureau’s prison miscount was discovered shortly before the 2000 Census, advocates, lawmakers and social scientists have been urging the Census Bureau to update its methodology and change how it counts people in prison.

The Census Bureau could have spent the middle part of this decade investigating the optimal way to collect and process the home addresses of incarcerated people. That planning time was instead spent stonewalling critics and ignoring proposals focused on incremental improvements.

The Bureau’s failure to take concrete steps towards counting people in prison correctly makes it difficult for the new administration to insist that people in prison be counted where they actually live, not where they are temporarily confined. But the Census Bureau doesn’t have an excuse for not implementing the interim proposals that would greatly reduce the harm caused by the prison miscount in this Census and make a more complete fix in the future possible.

There are three things that an Obama administration should do to help end prison-based gerrymandering:

1. Instruct the Census Bureau to use direct enumeration not administrative records wherever possible to count people in prison.

Ultimately, the Census Bureau should be counting people in prison as residents of their home communities, but the current administration is taking small steps in the wrong direction. Some states keep home address information in their official prison records, but in many cases collecting home address information is best done by using individual Census forms to collect this information directly from incarcerated people.

After the 2000 Census, the National Research Council deemed the quality of the data collected from correctional facilities to be “poor” and blamed the Bureau’s higher than expected reliance on administrative records. However, rather than expand the use of direct enumeration on special forms in prisons, the Census Bureau is planning to eliminate them. Relying solely on administrative records to count people in prison will further reduce data quality and make several important advances impossible.

Three recent National Research Council reports have urged direct counts of people in prison. All three reports believed that direct enumeration would be more accurate than administrative records, and all three reports encouraged the use of a special form that asked for an alternative address. The first two reports made this recommendation to facilitate de-duplication where data is accidentally processed twice; and the third did so as part of a multi-step proposal to modernize how all populations are counted.

Collecting this alternative address information — if only for internal testing, tracking and quality purposes — would be an important step towards counting people in prison at alternative addresses in the next Census.

2. Use the 2010 Census to determine the best way that people in prison should be counted in the future.

The Census regularly conducts research during one Census in order to improve the next. Currently, the Census Bureau is ignoring its own experts at the National Research Council who recommended that the Bureau conduct a major research and testing program during the 2010 Census to determine the best way to assign the correct address to people who are incarcerated on April 1. The Bureau should be testing how to phrase the question, what kinds of administrative data it should accept, and how to best digitize the results. Instead, the Bureau is planning to let this opportunity slide, which could push a major test to 2020 and ending the prison miscount to 2030.

3. Change how the data is published so that prison populations need not distort democracy.

While it may be too late to change where people in prison are counted, if action is taken quickly, an Obama administration can change how the data is published and used. Publishing block-level counts of prison populations at the prison addresses would make it easier for legislatures to remove the prison populations at districting time.

Currently, the “PL94-171″ data published by the Bureau for redistricting purposes does not identify which populations are confined in a correctional facility, often mixing custodial and civilian populations in a single census block. When states and counties want to draw fair districts that do not include the prison population, they have three choices: try and match up Department of Corrections data; wait for publication of the Census Bureau’s “Summary File 1″ data which contains a correctional count; or just guess.

Jurisdictions covered by Section 5 of the Voting Rights Act have it even worse, because they can’t wait for the publication of the prison counts in Summary File 1. Further, because they must publish race and ethnicity data for each district, they find it difficult to reconcile the partially incompatible racial and ethnic classifications in the two data sets.

Interest in drawing districts without prison populations is clear. Dozens of counties around the country already do these adjustments. They parse the data themselves, but it’s labor intensive and invites error. Nevertheless, as knowledge of the problem grows, more counties and even states are expressing interest. The Census Bureau is uniquely suited to provide this information, and doing so would have only the smallest of burdens on Census Bureau operations.

Publishing an alternative version of the redistricting data that contained just the prison population at prison addresses would only require the publication of existing data in a different format several months earlier than the Bureau would have done otherwise. Of the 8 million Census blocks in Census 2000, less than 6,000 contained a correctional facility. Producing the four race/age/ethnicity redistricting tables for the population in correctional facilities in these blocks would be a minimal burden with wide-ranging and long-lasting benefits.

Conclusion

The Census Bureau has been on notice for a decade that its outdated method of counting people in prison needs to be changed. Prison-based gerrymandering should already be history, but instead the Bureau is seeking to repeat and amplify the errors of the past. But if President-elect Obama acts fast, he can lessen the harm caused by the prison miscount and ensure that the 2010 Census is the last one to credit 2.5 million people to the wrong place.

Danny R. Young, a 53-year-old backhoe operator for Jones County in eastern Iowa, was elected to the Anamosa City Council with a total of two votes — both write-ins, from his wife and a neighbor.

While the Census Bureau says Mr. Young’s ward has roughly the same population as the city’s three others, or about 1,400 people, his constituents wield about 25 times more political clout.

That is because his ward includes 1,300 inmates housed in Iowa’s largest penitentiary — none of whom can vote. Only 58 of the people who live in Ward 2 are nonprisoners. That discrepancy has made Anamosa a symbol for a national campaign to change the way the Census Bureau counts prison inmates.

The article highlights the efforts of Bertha Finn, who organized a referendum last year which abolished the prison district by switching the small city to an at-large system of government. I’m quoted in the article cheering the people of Anamosa on:

“The people of Anamosa have the right idea,” Mr. Wagner said. “A small group of people should not be allowed to dominate government just because the Census Bureau counted a large prison there.”

Read the full article, Census Bureau’s Counting of Prisoners Benefits Some Rural Voting Districts on the New York Times site.

You can also read previous blog posts and reports about some of the other places discussed in the Times:

• St. Lawrence County, NY is discussed in our report Phantom constituents in the Empire State: How outdated Census Bureau methodology burdens New York counties
• Chippewa County, WI
• 21 Counties that have at least 21% of their populations behind bars
• Lake County, TN is discussed in our report
  Phantom Constituents in Tennessee’s Boards of County Commissioners

If you live in a small community with a large prison, be sure to check out our Democracy Toolkit to determine if — and to what degree — prison populations are distorting your access to local government.

And finally, this map was made by our friend Adell Donaghue to illustrate the current — and soon to be abolished — unequal districts in Anamosa, Iowa:

But Chippewa County is about to experience a far more serious impact from the prison miscount that could radically dilute the political power of almost every county resident over their own government. While the statistical uses of the Census get a lot of public attention, the most important use of the Census is for redistricting, and how state and local government power is distributed should be of concern to everyone.

Each resident of Chippewa County is represented by one of 29 Supervisors who are each elected from a different district. Each decade after the census, the districts are redrawn to ensure that each district has the same number of people. In this way, every resident has the same access to government regardless of where she or he lives.

One of the new prisons in Chippewa County is large enough to create a bigger vote dilution problem than in any other county we’ve studied in Wisconsin. If the districts were redrawn today, the district that included the Stanley Correctional Institution would be 72% prisoners. Every group of 28 residents near the prison would be given as much as say over the future of the county as 100 residents in every other district. Giving a small group of people 3 times as much political power as other residents because they happen to have a prison nearby isn’t just unfair; it violates state and federal law.

In our recent report, Importing Constituents: Prisoners and Political Clout in Wisconsin, we traced how the state legislature, the county boards and the rural city councils are, by relying on flawed Census counts to draw districts, unwittingly giving some residents extra influence in violation of state and federal law. Wisconsin doesn’t allow people in prison to vote, but state law says that a prisoner’s residence remains where she or he lived prior to incarceration.

Ideally, the U.S. Census would change how it counts people in prison so that states and counties could use that data to draw districts without running afoul of state and federal laws. But counties are not powerless while they wait for the Census to do the right thing.

Chippewa County could join similar counties across the country and remove the prison populations from the Census data prior to redistricting. In Michigan, whether the potential for vote distortion was very large or quite small, nearly all counties ignored the prison population when drawing their districts. Gratiot County modified the census data to avoid creating a district that would have been 50% prisoners. In Lapeer County, using the census would have meant a district with 6% prisoners — 12 times smaller than the problem facing Chippewa — but even there the county clerk told us that they took the effort to exclude the prison population because the prisoners were “not really residents.”

Chippewa is just starting to see the effects of the prison miscount on its statistical image, but it doesn’t have a lot of time to decide whether its internal balance is going to be radically altered. The U.S. Census will take place in 2010, and redistricting will start in 2011.

If Chippewa County believes that the people who live near Stanley Correctional are 3 times as important as the people who live everywhere else in the county, they should do nothing. Use the Census Bureau’s data that count the prison populations as local residents to draw districts.

But if Chippewa County believes that all of its residents should have the same amount of political power regardless of where they live — as required by the Supreme Court’s “One Person One Vote” rules — the county should start planning to adjust the Census now.

More than 55,000 people live in Chippewa County but not immediately adjacent to a prison. The best way for those residents to make sure that the prison does not distort their county government is to start asking their county officials one question: “Are you planning to use the Census Bureau’s prison count to dilute my vote?”

Judge Calabresi, writing for a 3 judge panel wrote:

And there is often a significant geographic disparity with regard to groups that cannot vote. For example, in New York, many incarcerated prisoners come from urban centers but the census on which apportionment is based counts “incarcerated prisoners as residents of the communities in which they are incarcerated,” and thus may increase “upstate New York regions’ populations at the expense of New York City’s.”

Kalson v. Paterson No. 07-1243-cv 15 (2d Cir. September 9, 2008).

The Second Circuit is revisiting the issue it addressed in two en banc opinions from 2006. Muntaqim v. Coombe and Hayden v. Pataki challenged New York State’s practice of disenfranchising people in prison and people on parole, combined with historic and systemic discrimination in the criminal justice system, as violations of the Voting Rights Act. Neither lawsuit was successful, but the opinions raised the question of where people in prison reside for voting purposes and whether basing rural white legislative districts on non-resident Black prison populations amounts to impermissible vote dilution.

Muntaqim’s lawsuit against New York State’s election law was dismissed because prior to his incarceration he was a resident of California:

Only New York residents can register and vote in New York. New York Election Law section 5-102(1) provides that “[n]o person shall be qualified to register for and vote at any election unless he is . . . a resident of this state . . . for a minimum of thirty days next preceding such election.” New York Election Law section 1-104(22) defines “residence” for registration and voting purposes as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” Residence is critical since it is neither gained nor lost as a consequence of incarceration. Under both the New York Constitution and the New York Election Law, “no person shall be deemed to have gained or lost a residence, [for purposes of registering and/or voting] by reason of his or her presence or absence, while . . . confined in any public prison.” N.Y. Const. art. II, § 4; see also N.Y. Elec. Law § 5-104(1) (same). These provisions clearly establish that Muntaqim, a California resident, did not become a New York resident because of his incarceration in New York.

Muntaqim v. Coombe No. 01-7260-cv 6-7 (2nd Cir. May 4, 2006).

Hayden’s claim that New York’s felon disenfranchisement system was dismissed in a lengthy and split opinion by the 13 judge panel. But the court seized upon an issue raised in an amicus brief from the National Voting Rights Institute and the Prison Policy Initiative. We argued that New York State’s decision to used flawed Census counts that credit 43,740 mostly urban, Black and Latino prisoners to rural White Senate districts was one of the circumstances the court should considering when reviewing the Voting Rights Act claim.

The Court was clearly intrigued by this argument, and at oral argument questioned the Attorney General at length whether reliance on flawed Census counts to draw districts could in itself amount to impermissible vote dilution. In its written opinion, the court discussed the issue before directing the lower court to determine whether the prison miscount was properly raised and to rule on its merits. Unfortunately, the Hayden case did not properly state a claim, so the federal courts have not yet had an opportunity to decide the issue on the merits.

The New York Times summary of the first set of decisions is just as applicable now:

Just by calling attention to what amounted to a footnote in the advocates’ case, the judges almost seemed to be prodding the plaintiffs, and the lower court, to examine the case against counting prisoners where they are incarcerated in drawing legislative districts.

Sam Roberts, Court Asks if Residency Follows Inmates Up the River, New York Times, May 13, 2006

Note: Thank you to Brenda Wright at Demos for bringing the Kalson case to my attention.

You might call Wisconsin’s 53rd State Assembly District the land of prisons. Hugging the western shore of Lake Winnebago, it includes sections of Oshkosh and also encompasses the Dodge, Waupun, Oshkosh and Winnebago correctional facilities. Some 5,000 “constituents,” or 9.5 percent of the district, are actually prisoners who don’t vote and are legal residents of another district, with many from Milwaukee.

It’s a blatant violation of US. Supreme Court rulings that require legislative districts be divided equally based on population, declares a new study of Wisconsin by the Massachusetts-based Prison Policy Initiative. Residents of the 53rd District get 10 percent more electoral power than other districts in Wisconsin, the study notes.

At the county level, prisoners have even more impact. The study found 64 percent of Adams County’s 5th and 6th districts, 59 percent of Dodge’s 31st District and 53 percent of Dodge’s 29th District are prisoners. In these districts, constituents get double the electoral power of other voters. James Layman, the Dodge 31st supervisor, who describes himself as a conservative-leaning independent, says the inequality should be addressed. “I think that’s a false presentation because I don’t represent those people,” he says of the prisoners.

But Rep. Carol Owens (R-Oshkosh), who has represented the 53rd District since 1992, scoffs at the study’s claims, calling it “grasping at straws.”

Rep. Spencer Black (D-Madison) says that if prisoners from Milwaukee were counted as residents of their home city, “Milwaukee would have lost one Assembly seat in [the 2000 redistricting], not two. The 23rd District would have been primarily in Milwaukee. Instead it’s largely suburban.”

All told, 42 percent of state prisoners call Milwaukee County home, yet are not counted toward its population. That’s roughly 8,400 people who are tallied to serve the political interests of other districts.

Black notes that when 2000 redistricting discussions were taking place, then-Gov. Tommy Thompson petitioned Washington to count Wisconsin’s out-of-state prisoners as Badger residents to prevent this state from losing a congressional seat. Thompson’s plea was rejected and Wisconsin lost the seat.

The Prison Policy Initiative suggests the U.S. Census Bureau should change how it counts people in prison by determining their city of legal residence, or that the state of Wisconsin do its own census of prisoners to adjust the national totals. But so far, neither the Census Bureau nor any states have embraced the idea, citing costs and complications.

Rep. Fred Kessler (D-Milwaukee) offers a quicker solution: Wisconsin should follow the lead of Mississippi, Colorado and New Jersey, and simply not count prisoners for redistricting purposes. But he doubts such legislation will pass as long as Republicans control either house of the legislature. “Most prisons are in rural areas and Republicans benefit from counting the nonvoting prisoners,” he says. “Look at where the prisons are — Portage, Waupun, Oshkosh. They’re not in Democratic areas.”

Given that the Supreme Court’s “one man, one vote” ruling dates to 1963, why is this issue arising only now? Prison growth has given the issue far more impact: In Wisconsin, the number of state prisoners grew from 4,000 in 1980 to over 20,000 in 2000. The growing number of miscounted citizens, the Prison Policy Institute says, causes “serious damage … to state and local democracy.”

A 200-year-old glitch in the U.S. census is causing an increasingly serious problem for American democracy. Members of the booming U.S. prison population continue to be counted as residents of the city or town where the prison is located, even though they don’t vote, pay taxes, or do anything else that would make them active citizens in the community outside the prison’s walls.

This arrangement may have made sense to the founding fathers more than two centuries ago when there were few prisons and few uses for the census. By 2008, however, that has all changed. Almost 1 percent of the American adult population — and 3.6 percent of the black adult population — is temporarily behind bars, and the census has become a crucial tool for making important decisions ranging from where to build schools and hospitals to how to draw voting districts. The impact of counting people in prison in the wrong place is now simply too big to ignore. Increasingly, the practice of counting the prison population as residents in communities with prisons is distorting democracy at the state and municipal levels and fueling prison expansion projects at the expense of other forms of economic development.

According to a Prison Policy Initiative analysis of 2000 U.S. census data, there are 21 counties where at least 21 percent of the reported census population is actually composed of incarcerated people from outside the county. In 173 counties, more than half of the black population reported in the census is incarcerated. Fifty-six counties that were actually losing residents and in serious distress were recorded by the census as growing because they had opened prisons during the previous decade.

Along with distorting government priorities, crediting large portions of a population to the wrong communities makes drawing fair legislative districts impossible. Because people in prison cannot vote and remain legal residents where they lived prior to incarceration, counting them as residents in the district where they are imprisoned creates artificial populations that increase the voting strength of the prison district’s real residents and dilute the voting strength of residents in other districts. In New York State, seven rural state senate districts with large prisons would not meet the U.S. Supreme Court’s minimum population requirements without counting the prison population as local residents. Four of those prison-district senators sit on the powerful Codes Committee and oppose reforming the state’s draconian Rockefeller drug laws, which boost the state’s prison population by mandating harsh penalties. The inflated populations of these senators’ districts give them political power and little incentive to consider or pursue policies that might reduce the numbers of people sent to prison and the length of time they spend there. Republican New York State Senator Dale Volker, boasts that he is glad that the almost 9,000 people confined in his district cannot vote because “they would never vote for me.”

In New York, the state legislature relied on 2000 census data to update district boundaries and wound up drawing one legislative district in which 7 percent of people were in prison. A similar situation in Texas resulted in one district where 1 out of every 8 people was in prison. In Montana, a district padded its population by 15 percent with a prison population imported from other parts of the state. This means that every group of 85 residents who live near the prison is given the same say over state affairs as 100 residents elsewhere in the state.

The most visible support for changing the way the Census Bureau counts people in prison is coming from urban areas like New York City and Chicago that see large percentages of their population sent off to remote prisons. Yet some of the strongest support for reform is coming from rural communities that have prisons and need census data to draw legislative districts. Because county legislative districts tend to be small, a large prison can dominate the district and dilute the votes of residents elsewhere in the county. For example, the residents of St. Lawrence County, New York, who happen to live near a state prison have 25 percent more say over the future of their county than people who do not live next to the prison. Tired of how a prison distorted the county’s districts, people in St. Lawrence County signed a petition to stop the inclusion of prison populations in local districts. After the petition effort failed, county voters used local elections to throw out most of the incumbents responsible for the prison population district gerrymandering.

Senator Eric Schneiderman, a Democrat from New York City, is leading the effort in the New York State Senate for reform. “We need to deal with this, not just as a political issue, but as a moral issue,” he recently told City Limits. He went on to explain why this issue matters in his district: “Working in the legislature, we look at poor communities, like the one I represent in Washington Heights: people tend to have fewer resources for their schools, fewer resources for transportation, less access to health care. Our constituents are told to get into the political process and fight for change, and yet the same state actors dilute their vote.”

A relatively simple solution would be for the Census Bureau to collect home addresses rather than institutional addresses for people in prison in the next census. In the past, the bureau has updated its method of counting students, missionaries, overseas Americans, and other groups as changing demographics and changing needs for data demanded it. Yet the bureau moves slowly, and even though the 2010 census is two years away, time for reform is limited because the bureau has already begun planning the count. A number of states are taking steps to resolve the problem on their own. A bill is currently pending in New York that would collect the home addresses of incarcerated people and then adjust the federal census data when it arrives. This is not an ideal solution, but it is a viable option for some states and could alleviate the political distortions that come from counting transplanted prison populations as local residents.

May 27, 2008

Diana Hynek
Departmental Paperwork Clearance Officer
Department of Commerce, Room 6625
14th and Constitution Avenue, NW
Washington, DC 20230

Re: The Census Bureau’s plan to rely on administrative records to count incarcerated people in the 2010 Census

Dear Ms. Hynek,

I am writing out of concern that the Census Bureau, as announced in the Federal Register, plans to use administrative records to count people in prison in the 2010 Census. As you may know, the quality of the data the Census collected from prison populations in 2000 was deemed “poor” by the National Research Council and that the poor quality of the data derived in part from the Bureau’s higher than expected reliance on administrative records.[1] I am concerned that the decision to rely solely on administrative records in prisons will further decrease the accuracy of the 2010 and future Censuses.

Accurately counting the population in prison is increasingly important. Currently, there are more than 2 million people in prisons and jails. Since the 1980 Census, the percentage of Americans incarcerated in correctional facilities has increased four-fold, with more than 0.7% of Americans currently incarcerated. Certain demographic groups are disproportionately affected by these trends; for example, 11% of the population of African-American men in their 20s and 30s is currently incarcerated.

Three recent National Research Council reports have urged the direct enumeration of people in prison .[2] All three reports believed that direct enumeration would be more accurate than administrative records, and all three reports encouraged the use of a special form that asked for an alternative address. The first two reports made this recommendation to facilitate de-duplication where data is accidentally processed twice; and the third did so as part of a multi-step proposal to modernize how all populations are counted.

Unfortunately, a decision to rely solely on administrative records to count people in prison is a step in the wrong direction. The Bureau should be seeking to expand its direct enumeration in correctional facilities, not curtailing it.

Despite the concerns expressed by some Census Bureau officials, direct enumeration of prisoners can be both safe and appropriate. Although prison officials often warn of safety problems, social workers, volunteers and other civilians enter prisons quite frequently to no ill effect. Further, the Census Bureau’s own experience in 2000 suggests that direct enumeration of people in prison can produce higher quality data at lower cost.[3]

The National Research Council has repeatedly recommended that the Census Bureau create special forms optimized for each type of special housing. The Census Bureau should create such a form for people in correctional facilities and use it where ever possible.

Given that about 1% of all adults in the United States are expected to be incarcerated during the 2010 Census, increasing the accuracy of the prison count would have a large and positive effect on the overall accuracy of the 2010 Census.

Sincerely,

Peter Wagner
Executive Director

cc:
Steve H. Murdock,
Director, U.S. Census Bureau

Footnotes

May 27, 2008

Diana Hynek
Departmental Paperwork Clearance Officer
Department of Commerce, Room 6625
14th and Constitution Avenue, NW
Washington, DC 20230

VIA ELECTRONIC MAIL: dHynek@doc.gov

Re: Collecting the addresses of incarcerated people in the 2010 Census

Dear Ms. Hynek,

We are writing to urge the United States Census Bureau to collect the home addresses of all incarcerated persons in the 2010 Census. In October 2007, we sent then director Kincannon a letter co-signed by 30 federal, state and local legislators requesting that the Bureau change how it counts the prison population. Counting people in prison at their pre-incarceration address is essential for compliance with the “One Person, One Vote” rulings of the Supreme Court, which require that legislative districts at every level of government contain equal numbers of residents in order to ensure fair and equal representation for all. The Census is uniquely suited to perform this function, which will help us better serve our constituents, our states, and our country.

Currently, the Census Bureau includes everyone housed in federal, state, and local prisons in its count of the general population of the Census block that contains the prison. State laws, however, often define residence as the place where one voluntarily lives. Many states also have constitutional clauses or election law statutes that explicitly declare that incarceration does not change a residence. Prisoners therefore remain legal residents of their pre-incarceration addresses, and in situations where they retain voting rights, they send absentee ballots to their home districts. Unfortunately, the current census methodology opts to disregard this, instead counting a significant proportion of our national population in the wrong place. Crediting the population of prisoners to the Census block where they are temporarily and involuntarily held creates electoral inequities at all levels of government.

In our letter, we asked the Census Bureau to permanently eliminate this problem by counting people in prison as residents of their home addresses. Recognizing that time was short, we asked the Bureau to implement, as an interim solution, the recommendation of the National Research Council, and publish a special version of the PL94-171 redistricting data file for the prison population. Publishing detailed block-level counts of prison populations would empower legislators to remove those populations prior to redistricting. New York has relatively good record keeping procedures tracking the home addresses of inmates, but it is ultimately the duty of the U.S. Census Bureau to provide this information in a usable format for State and County Legislators. Furthermore, not all states find themselves with the same level of resources to locally correct this failing on the part of the Federal Census Bureau.

Unfortunately, we did not receive a positive response from then-Director Kincannon. On November 20, 2007 Director Kincannon wrote that the Bureau was not intending to change its method of counting the prison population. His arguments were based on the Census Bureau’s 2006 report, “Tabulating Prisoners at Their Permanent Home of Record Address,” the findings of which were rejected by the Census Bureau’s own commissioned experts at the National Research Council later that year. The Director’s response also failed to address our request for a special version of PL94-171 to facilitate data correction.

While it is true that improving the accuracy, fairness and utility of the census by changing how incarcerated people are counted would create an additional burden on the Bureau, we feel that the Bureau is making the burdens seem more significant than they really are.

For example, the Census Bureau argued that:

If a valid residential address (i.e., a complete address that can be verified to exist) were provided, the Census Bureau would have to verify the validity of tabulating the prisoner at that address which would require a new census operation to interview the current residents of the address.[1]

The solution need not be so difficult. The Bureau could simply count prisoners the same way that people in non-institutional group quarters like migrant farmworkers, people in hostels, and members of religious orders[2]: Count prisoners at the facility only if they do not report a usual and valid address elsewhere.

Likewise, the Census Bureau has argued that collecting home residence information would be difficult because it does not exist in a complete and usable form in administrative records. While the Census Bureau should certainly respond to the National Research Council’s repeated criticism of the Bureau’s over-reliance on administrative records to enumerate group quarters populations[3], the Census Bureau’s response runs to an opposite extreme. Interviewing an estimated 2.6 million incarcerated people in a private and confidential room would indeed be an expensive, time consuming and difficult operation. To date the Bureau has been reluctant to consider solutions based on its successful practice in other parts of the Census: use individual forms in most cases, and conduct in person interviews or indirect means of collecting the data only where necessary.

Given the Bureau’s failure to take concrete steps to change how incarcerated people are counted in the 2010 Census, we concede that the full reform we seek is difficult to realize in the 2010 Census. But time still exists for two very important steps.

First, the Census Bureau should adopt the recommendations of the National Research Council and conduct experiments during the 2010 census as part of a major research and testing program to evaluate assigning incarcerated people to other addresses outside the facility.[4] The 2010 enumeration is an opportunity that should not be missed to test improvements.

Second, we again repeat our request that the Bureau implement as an interim solution, the recommendation of the National Research Council, and publish a special version of the PL94-171 redistricting data file for the prison population. Publishing detailed block-level counts of prison populations would empower legislators to remove those populations prior to redistricting. Again, Director Kincannon did not address this portion of our proposal in his November 2007 letter.

This special dataset would greatly assist counties and states with large prisons to drawing fair districts. The interest in an alternative tabulation is clear. Thirteen counties in New York already manually remove the prison population prior to redistricting[5], as do counties in Alabama, California, Colorado, Georgia, Illinois, Florida, Michigan, Mississippi, Oklahoma, South Carolina, and Virginia. Many of the counties that retain the prison populations do so only because they are unaware that prisoners are included in the Census, because they feel obligated to use the Census, or because they do not know how to adjust the data.[6]

To manually adjust the Census, counties must rely on incompatible Department of Corrections data or on Summary File 1 data which is published several months after PL94-171. Jurisdictions covered by Section 5 of the Voting Rights Act have particular difficulties because they must often start — if not also complete — redistricting prior to the publication of Summary File 1. Further, these jurisdictions find it difficult to reconcile the partially incompatible racial and ethnic classifications in PL94-171 with the data published for correctional populations in Summary File 1. The Census Bureau is uniquely suited to eliminate these problems.

Publishing an alternative version of PL94-171 dataset that contained just the prison population at their prison addresses is well within the Bureau’s capabilities. There is no impact on data collection procedures and it requires only the publication of a small amount of data in a different format several months earlier than the Bureau would have done otherwise. Of the 8 million Census blocks in Census 2000, less than 6,000 contained a correctional facility.[7] We are asking that the four tables in the PL94-171 redistricting data set be recalculated and published separately to show only the correctional populations in those 6,000 blocks. With this special tabulation, data users would be empowered to decide whether they want to draw districts based on the prison populations without wrestling with the technical questions. By subtracting one data set from another, data users can have a complete and accurate count of their population without the prisoners skewing the data.

This is not an ideal solution, but it is one that is well within the means of the Census Bureau to implement at this late date. We respectfully urge the Census Bureau to take all steps possible to help reduce and eventually eliminate the political inequities and unnecessary data complications that result from the flawed practice of counting people in prison as residents of the census block that contains the prison.

Sincerely,

Eric Schneiderman
New York State Senator, 31st District
Ranking Minority Member,
Senate Codes Committee
80 Bennett Avenue, LA
New York, NY 10033
Phone: 212-928-5578
Fax: 212-928-0396

Tedra L. Cobb
Vice-Chair
St. Lawrence County Legislature
District 8
365 Townline Road
Hermon, NY 13652
(315)386-4928 Phone and Fax

cc:
Steve H. Murdock, Director, U.S. Census Bureau
Frank Vitrano, U.S. Census Bureau
Catherine M. McCully, U.S. Census Bureau

Footnotes