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

There once was a time when in the state of New Hampshire, wealth bought votes. It wasn’t illicit or even unusual. In fact it was the law of the state. The amount of power each Senate district had was directly proportional to its taxes paid. This method of redistricting was struck down in Reynolds v. Sims less than 45 years ago.

New Hampshire was not alone. Other states had fundamentally unfair apportionment schemes. For example, Alabama gave every county the same number of state senators. As a result, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This too was struck down by Reynolds v. Sims.

In that case, the Court declared its now-famous “one person, one vote”  principle, holding that the Constitution prohibits redistricting plans giving voters in one area power beyond their numbers. The Court explicitly held that “legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”

In other words, apportionment plans must be based on population and where voters reside should not affect the power of their vote. As a result, an industry or other economic interest can only exert political influence in proportion to the number of people that support it. The Reynolds case intended to permanently the settle the question of whether other interests besides population can be the basis of representative democracy.

Except it didn’t.

The Census Bureau counts people in prison where their bodies are located on census day, not where they come from and where they will return, on average, 34 months later. Forty-eight states bar prisoners from voting, and most states have constitutional clauses or election law statutes which explicitly declare that prisoner remains legal residents of their home addresses. When states draw districts based on the Census Bureau’s padded counts of prison locales, they give those districts extra representation just because the prison industry has a facility there.

Where prisoners are counted matters not only in big-prison states like Texas, it matters everywhere. New Hampshire has one of the lowest incarceration rates in the nation, yet relying on the prisoner miscount to draw districts creates a serious vote dilution problem. Of the 12,594 people in the district containing the New Hampshire State Prison, 11 percent are incarcerated. As a result, every group of 89 residents in this prison district has the same political power as 100 residents elsewhere in the state.

When the Reynolds Court required legislatures to apportion political power on the basis of population they could not have foreseen that a glitch in Census Bureau methodology would later undermine their groundbreaking decision. Prisons are the only industry that has its raw material counted in the decennial census. For example, tourists are counted at their home addresses, and Detroit receives no additional boost from the automobile industry’s unsold inventory.

The intent of Reynolds was to ensure that industries could not exert political influence. To do so, the Court crafted a rule stating that political power must be distributed equally on the basis of population. The Court could not have foreseen that two million people associated with one particular industry would be counted at the wrong location.

To fulfill the promise of representative democracy embodied in Reynolds, the Census Bureau and the state legislatures should develop a plan to count prisoners properly. There is no excuse that people who are easy to count by virtue of their confinement should present such difficulty.

Brett Blank is a law student and a law clerk at the Prison Policy Initiative.

NEW YORK, Dec. 13 — The United States Census practice of counting prisoners in their districts of incarceration rather than their home districts for the purpose of establishing electoral and Congressional representation is a violation of international treaty. This month, the non-partisan public policy and advocacy centers Demos and the Prison Policy Initiative (PPI) submitted their analysis to the Committee for the Elimination of Racial Discrimination (CERD) in Geneva.

Demos and PPI urged the committee to scrutinize the racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in violation of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Demos/PPI comments were included in a larger submission [PDF] prepared by the U.S. Human Rights Network.

The United States ratified the CERD treaty in 1994, and therefore is bound under international law to work to eliminate policies that are intentionally or unintentionally racially discriminatory. The CERD treaty obligates each country to report every two years on its progress at eliminating racial discrimination. The United States submitted its report [PDF] in April and will be questioned by the CERD Committee in Geneva in March 2008. The Committee looks to individuals and organizations in each county to critique the reporting counties report and to highlight omissions.

CERD violations cited by Demos/PPI include:

• People in prison are prohibited from voting. Forty-eight of 50 states refuse to allow people in prison to vote, in violation of Article 5 of the CERD which requires universal suffrage and prohibits actions that reduce the ability of racial groups to exercise political rights. This disfranchisement disproportionately affects U.S. Blacks and Latinos, who are 60 percent of the U.S. prison population, but only 27 percent of the total population.
• State legislative districts are drawn so that prison populations are counted in the district of the prison, not their home district, even though the inmates are not permitted to vote. Even beyond banning votes by people with felony convictions, U.S. states provide additional legislative seats to what are often rural and white districts while diluting the votes of urban and racially diverse districts. This overlooked practice constitutes a separate violation of Article 5.

U.S. Supreme Court decisions require each state’s legislative districts to be substantially equal in population, providing each resident the same representation in government. To account for changing populations, each state must update its districts at least once per decade.

However, all 50 states draw their districts based on flawed data from the U.S. Census that counts prisoners as if they were residents of the prison location, not of their home addresses. Under U.S. common law, people are residents of the place they choose to reside with an intent to remain, and as incarceration is involuntary, it should not qualify as a residence. In most states, this is explicit. New York State presents a particularly egregious example, where state counting of prisoners for redistricting purposes both violates the CERD treaty and possibly the state’s constitution, which declares: “for purposes of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

Yet all 50 states dilute the votes of urban and communities of color by insisting on using the flawed Census data to apportion their legislative districts. According to Importing Constituents: Prisoners and Political Clout in New York, the first study to quantify the redistricting impact of disfranchised prison populations, counting people in prison as residents of the prisons and not their homes cost New York City, for instance, a net loss of 43,740 residents to prison towns outside the city. The transfer of this large, predominantly of color, non-voting population to upstate prisons, where it is counted as part of the population base for state legislative redistricting, artificially enhances the representation afforded to predominantly white, rural legislative districts.

Demos and the Prison Policy Initiative urge CERD members, and the U.S. Census, to redress these violations of apportioning state legislative districts with data that credits disfranchised Black and Latino prisoners to white legislative districts and diluting the voting strength of Black and Latino populations. This is a clear violation of the United States’ obligation under Article 5, which gives all groups the equal right to “to take part in the Government as well as in the conduct of public affairs.”

For more information on this report and the CERD treaty, state specific activity, and the US Census, visit www.prisonersofthecensus.org.

About Demos and the Prison Policy initiative:

Demos is a national, non-profit and non-partisan public policy center. Demos publishes a wide array of research and books, hosts public forums, and works across the nation with advocates and policymakers in pursuit of three overarching goals: a more equitable economy with opportunity and prosperity shared by all; a vibrant and inclusive democracy with greater voter participation and civic engagement; and a public sector with the ability to address shared challenges and work for the common good

The non-profit, non-partisan Prison Policy Initiative documents the disastrous impact of mass incarceration on individuals, communities, and the national welfare. Among its publications is the 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: Peter Wagner, PPI, pwagner [at] prisonpolicy.org, 413-527-1333

Tim Rusch, Demos, trusch@demos.org, 212-389-1407

-30-

The Census Bureau picked San Joaquin County in California and nine counties near Fayetteville, North Carolina for the practice count because these counties contain the diverse populations, large prisons and military bases where the Bureau has historically had the most difficulty.

Congress should act swiftly to prevent further cuts to Census Bureau programs, and work with the Bureau to develop a funding plan that restores the test count of prisons and military barracks.

The Prison Policy Initiative has long argued that the Census Bureau needs to develop a new methodology to count people in prison at their home addresses. With the 2010 Census rapidly approaching, the Bureau should be taking large steps forward, not being forced backwards. As the New York Times reminds us, an accurate count is essential to representative democracy.

The established principles of residency dictate that prisoners are not residents of their prisons. To become a resident, a person usually has to voluntarily move somewhere with the intent to stay. Furthermore, a person can not lose a residence until a new one is acquired. Prisoners, who are taken against their will to a facility likely far from their hometown, and who intend to return to their hometown immediately upon release, can hardly be considered residents of their temporary confinement location.

In Ohio, cities draw ward lines for the purpose of representation on the city council. When cities use census counts of prisoners to draw their wards, they give more voting power to people who live near the prison. This violates the Supreme Court’s “One Person, One Vote” rule, which prohibits giving some people more political power because of where they live.

Mansfield has an equal representation problem that exceeds all others in Ohio. The city of Mansfield had a 2000 census population of 49,346, of which 4,612 were incarcerated in state prisons. After the 2000 census, Mansfield drew their six wards to have about 8,600 people in each, seemingly in compliance with the “one person one vote” principle. However, two large prisons, Mansfield Correctional Institution and Richland Correctional Institution, account for 60% of Ward 5’s population.

Using prisoners to pad out the population gives the 3,000 actual residents of Ward 5 as much political power as the 8,600 residents of any one of the other wards. Other Ohio cities have the same problem, such as Marysville (Ward 3 is 55% prisoners), Youngstown (Ward 3 is 10% prisoners) and Marion (Ward 1 is 32% prisoners).

Since the Census originally was used only for congressional reapportionment, all that mattered was getting the populations of states correct. Now, local governments rely on Census data to draw their ward boundaries. Sadly, census methodology has remained static while the uses of Census data have evolved.

However, Ohio’s Lima City shows city governments are not powerless. Because, according to Board of Elections Director Keith Cunningham “prisoners have no communications, no voting rights, and are not a constituency,” the Lima city council ignored the prisoners when drawing their ward boundaries. As a result, each ward is equally represented and has the same political power, regardless of whether it contains a prison.

The Census can and must provide data to local governments on the true residency of prisoners. Such a change would have a profound impact in facilitating equal representation at all levels of government.

Uses of census data have changed and census methodology must now follow. Prisoners, who cannot vote, are not mobile, do not pay taxes and cannot interact with others outside the prison should hardly be considered residents of the communities where they are incarcerated. Until the Census Bureau is willing to modify their methodology for counting prisoners, local governments will continue to be faced with the daunting decision of tediously removing prisoners from their ward counts or living with severe and unconstitutional distortions to their democracy.

John Hejduk is a law clerk at the Prison Policy Initiative.

For Immediate Release:
October 18, 2007
Contact: Michael Meade 646-522-8601
Peter Wagner 857-753-1132

Today, State Senator Eric Schneiderman, Peter Wagner, Executive Director of the Prison Policy Initiative, State Senators Eric Adams and Liz Krueger, Assemblymembers Adriano Espaillat, Micah Kellner, Keith Wright and Adam Clayton Powell, Council Members Robert Jackson, Miguel Martinez, and Melissa Mark Viverito and criminal justice and democracy advocates called on the United States Census Bureau to begin counting prisoners in their home communities, rather than where they are incarcerated. Elected officials and advocates also announced the beginning of a national letter-writing campaign by local elected officials in New York and around the country to urge a change in this policy.

“Counting prisoners as residents of the prison districts where they do not vote or otherwise participate in those communities is simply bad policy,” said State Senator Eric Schneiderman. “Disenfranchised people become an undeserved source of political power for legislators who benefit from locking up more people for longer sentences.”

“The Census Bureau’s insistence on counting prisoners as residents of rural counties creates big problems when counties like St. Lawrence go to draw county legislative districts. Because our county districts are so small, a single prison can have a huge negative impact on equal voting power,” said letter co-author Tedra L. Cobb, vice-Chair of the St. Lawrence County Board of Legislators.

Yesterday, federal, state, and local legislators presented a letter signed by 32 elected officials from New York, Texas, and Illinois to Charles Kincannon, Director of the Census Bureau, requesting that the agency collect the home addresses of all incarcerated persons in the next national decennial census and count them at those addresses. According to these officials, counting prisoners 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 Bureau considers redistricting to be the second most important use of its data and it wants to hear from the elected officials who use that data.” said Prison Policy Initiative Executive Director Peter Wagner. “I call upon all supporters of democracy to ask their own elected officials to join New York State Senator Eric Schneiderman and St. Lawrence County Legislator Tedra Cobb in their appeal to the Census Bureau.”

In addition to the Prison Policy Initiative, the elected officials were joined by criminal justice and democracy advocacy groups, including the Brennan Center for Justice, DEMOS, Citizens Against Recidivism, Coalition for Parole Restoration, Seven Neighborhoods Action Partnership, JusticeWorks Community, Center for NuLeadership on Urban Solutions, Community Service Society, The Correctional Association of New York, Families Rally for Emancipation and Empowerment (FREE!), and the Drug Policy Alliance.

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. New York State law, however, defines residence as the place where one voluntarily lives. Many states, including New York, also have constitutional clauses or election law statutes that explicitly declare that incarceration does not change a residence.

Unfortunately, the current Census methodology disregards this, instead counting a significant proportion of our national population in the wrong place. According to advocates, crediting the population of prisoners to the Census block where they are temporarily and involuntarily held creates electoral inequities at all levels of government.

“Every decade, states use federal census data to update their legislative district boundaries,” continued Mr. Wagner. “The goal is to ensure that each district contains the same population, as required by the federal constitution’s “one-person, one-vote” rule. The Census Bureau counts people in prison where their bodies are located on census day, not where they come from and where they will return, on average, 34 months later. The Bureau’s current practice made sense before prison populations became large enough to distort democracy. However, more people now live in prison than our three least populous states combined, and African Americans are imprisoned at 7 times the rate of whites. Today, this Census practice undermines the rule of law,” Peter Wagner explained.

“This is a fundamental question of equity,” said State Senator Liz Krueger. “The geographic communities where people who end up in our prisons come from are being underrepresented in Albany. As a result, once these prisoners have paid their dues to society and return home, they are not provided access to the community-based resources and services they need in order to move on with their lives and become productive citizens.”

“It’s only fair that we count prisoners from their last home address,” stated Adam Clayton Powell, IV. “In most cases, the prisoners will return shortly to their home address.”

“Counting prisoners, for census purposes, as members of the community where they are incarcerated has profound implications,” said Councilmember Robert Jackson. “I urge federal officials to review this mistaken policy, and to restore prisoners to the communities where they lived, have ties and to which they will return.”

“The ‘one person, one vote’ rulings of the Supreme Court are in direct contradiction with this policy,” said Councilmember Miguel Martinez. “Even though they may not recognize this in Washington, the Census Bureau policies have a real impact on my community and many other communities in New York City.”

“Counting prisoners as ‘residents’ of upstate districts instead of their home communities distorts representation in the legislature and violates the principle of one-person, one-vote,” said Brenda Wright, Legal Director of the Democracy Program at Demos.

Senator Schneiderman has introduced legislation in the Senate (S1934), which would bring the state’s practice into compliance with the state constitution. The bill, sponsored by Assemblymember Espaillat in the Assembly, would require New York to correct the inaccurate population data that results from the Census Bureau’s practice of counting prisoners as residents of prison communities. Thirteen counties in New York State already correct the data, but many other counties are unaware of the democratic distortion or the fact that they are permitted to alter Census data.

“If passed, the legislation that I’m sponsoring in the Assembly and Senator Schneiderman is sponsoring in the Senate would fix the inequity that is perpetuated by our current policy,” said Assemblymember Adriano Espaillat. “By counting prisoners in the places where they are incarcerated, the Census Bureau is effectively shortchanging my constituents from receiving fair representation.”

According to the Prison Policy Initiative report, Importing Constituents: Prisoners and Political Clout in New York, seven New York state senatorial districts met minimum population size requirements only because they included large prisons in the population total. The actual voting residents in these seven districts have inequitably inflated voting power relative to the inhabitants of the rest of the state.

“Not surprisingly, politicians whose jobs depend on packed prisons are often the strongest supporters of the mandatory minimums and harsh drug laws that have kept prisons full and devastated urban communities,” said Senator Schneiderman. “In the meantime, the voting power of the people in the largely poor and minority communities those prisoners come from is diluted, making it more difficult for those communities to advocate for the resources and services all everyone needs to better their lives and end the cycle of poverty and crime.”

As part of this ongoing campaign, elected officials and advocates pledged to continue recruiting elected officials from across the country to request this policy change from the Federal Census Bureau. In the meantime, if the Census refuses to change its policy, elected officials vowed to continue pushing for a remedy in New York State.

The letter is available at http://www.prisonersofthecensus.org/letter/

-30-

State senators who owe their seats to prison gerrymandering defend it tooth and nail. But a new study from the New York-based research group Prison Policy Initiative, entitled “Phantom Constituents in the Empire State,” found that 13 counties have excluded inmates from the local redistricting count because they thought it unfairly stacked the political deck. Some of the counties came to that conclusion after learning that imprisoned people would have made up 30 percent or more of proposed county legislative districts.

The Board of Supervisors for Essex County got it right when it wrote that counting prison inmates as residents unfairly diluted the voting weight of the county’s actual residents, especially since inmates “live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns.”

The study found 16 counties where inmates were still counted as residents for redistricting purposes. But that is likely to change as citizens learn that districts with prisons are wielding undeserved influence in county affairs. The same thing needs to happen in the New York State Legislature.

July 18 - The federal Census counts state and federal prisoners as part of the local population, and that creates big problems for county government, charges a new report by the Prison Policy Initiative. The report explains that the Census Bureau wants New York county governments to use its data but counts prisoners as residents of the prison location, which violates the New York State Constitution. Counting prisoners as residents, despite the fact that they can’t vote or participate in the communities where they are incarcerated, leads to unequal distributions of political power.

“This Census glitch creates big problems for counties,” says report lead author Peter Wagner, the Executive Director of the non-profit Prison Policy Initiative. “New York counties with prisons are faced with a tough choice: adjust the data, or rely on the Census and draw unfair districts based on faulty numbers.”

The report, Phantom constituents in the Empire State: How outdated Census Bureau methodology burdens New York counties, examines how the 31 New York counties with prisons handle the flawed data, commending 13 counties that adjust the census to prevent equal representation from being damaged. The report is the first to analyze local governments’ response to the inaccurate Census data and to measure the dilution of voting power within each county in the state.

The Prison Policy Initiative identified 15 counties, plus New York City, that rely on census counts of prison populations when they draw lines for county legislative districts or weight the votes for county boards of supervisors. The report finds five counties - Chautauqua, Livingston, Oneida, Madison, and St. Lawrence - where relying on faulty Census data created districts that were at least 20% prisoners. In such a district, every group of 8 residents has the same voting power as 10 residents in other districts. Some counties have even larger vote dilution problems. For example, 62% of the people counted by the Census in Groveland are incarcerated, giving every group of 4 residents in Groveland the same say over county affairs as 10 residents elsewhere in the county.

Essex County, one of the counties excluding prisoners during redistricting, has declared that prisoners “live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns” where they are incarcerated, and therefore should not be counted as residents.

“How the Census counts people in prison is a rarely-noticed problem,” said Wagner, “but it’s important that the public know how the Census is diluting their votes.” The authors are optimistic that change is possible, suggesting several reforms, including the Census Bureau reforming its methodology or individual counties adjusting Census data before redistricting. Wagner explained, “With only one exception nationwide, every time a community learns that prison populations are distorting their access to local government, the legislature has reversed course and redrawn districts based on actual population, not the Census Bureau’s mistakes.”

The report, Phantom constituents in the Empire State: How outdated Census Bureau methodology burdens New York counties, is available at http://www.prisonersofthecensus.org/nycounties.

People in prison are not residents of the places where they are locked up

The Census Bureau counts people in prison as residents of the places where they are incarcerated, and the New York state legislature currently relies on Census Bureau data to draw its legislative districts each decade. But the New York State Constitution expressly states that a prison is not a residence.

The redistricting process is designed to ensure that each group of residents in the state has the same access to government, as required by the Supreme Court’s “one person, one vote” standard. Yet crediting Senator Little’s district with thousands of phantom constituents reduces the number of real constituents to which she must appeal for re-election and allows her to focus narrowly on the particular needs of this more limited pool.

Artificially reducing her district’s population also moves thousands of people who would otherwise be in her district into neighboring districts. Since many of these people work in corrections, legislators in these neighboring districts will face pressure to support the corrections agenda. The other needs and priorities of upstate New York suffer as a result.

Though the prisons themselves may be closely linked to life in Little’s district–mostly in the jobs they provide her actual constituents–the people inside those prisons maintain durable ties to their home communities. The almost 13,000 people incarcerated in Little’s district, for example, have nearly 15,000 children, many of whom regularly make the day-long trek with loved ones to visit their imprisoned parents. Very few of the people incarcerated in Little’s district actually hail from there.

Most people incarcerated in Little’s district are serving sentences far short of the ten-year lifespan of legislative districts

Senator Little told the Post-Star, “[b]asically, these people are here, it’s where they’re living. Many of these people are here for life.” In fact, of the nearly 13,000 state prisoners in Little’s district, only 18 are serving life sentences.

Half of the state’s prison population will be released in the next 15 months, and the Department of Correctional Services moves people in prison around frequently. Half of the people in prison in Little’s district have been in their current prison for less than 6 months. So while the prisons themselves exude an air of permanence, the people held there are far more transitory.

Basing districts on prison populations is bad for rural democracy

Senator Little’s sprawling district comprises six upstate counties. All four of the counties that contain state prisons — Clinton, Franklin, Essex and Washington — disagree with Little that people in prison should be counted “where [they] are at the time of the census.” Each county ignores the prison populations when dividing up political power within the county. That so many local districting bodies have diverged from the state practice shows just how many problems the current practice creates.

In Franklin County, for example, where almost 11% of the population reported in the Census is incarcerated people from elsewhere in the state, the chair of the county legislature called the practice of ignoring prison populations in redistricting a “no-brainer.” Had the prison populations not been removed from the count, every Franklin County resident who lived near the prisons in Malone would have given the political power of 3 residents elsewhere in the county.

Clinton County excludes the prison population when drawing its county legislative districts. Neighboring Essex and Washington counties don’t have legislative districts, but they too disregard prison populations when apportioning political power to the towns represented on the County Board of Supervisors.

Conclusion

When the first Census was taken in 1790, counting people in prison as residents of the facilities may have made sense. The penitentiary was still in its infancy, and most people in prison were incarcerated close to home. More crucially, the concept of redistricting did not yet exist. The Census was used strictly to determine the relative population of each state to determine the size of its congressional delegation. It would not have mattered if an incarcerated person were counted at home in Brooklyn or in prison in Attica as long as he was not counted in New Jersey. Though the uses for Census data have drastically changed since then, the Census Bureau continues to count people in prison the same way.

In a 2006 report, “Tabulating prisoners at their ‘permanent home of record’ addresses,” the Bureau stated that collecting home addresses would cost $250 million, because many prisons don’t collect home addresses or have complete ones on file. The National Research Council rejected this assertion in its report “Once, only once, and in the right place,” declaring that the Census Bureau should start collecting the home addresses of people in prison and determine whether they could be used in the Census.

In the meantime, State Senator Eric Schneiderman (D-Manhattan) has proposed a bill that would ensure that the data used for New York state and county redistricting counts people in prison where they are from, not where they are housed. Schneiderman’s bill could be a first step towards removing the accidental incentives that align the state’s political agenda with the corrections agenda.

Source for Senator Little quotes: Will Doolittle, “Inmate population affects Senate district lines”, Post-Star (Glenns Falls, NY), October 9, 2006