Local governments find unexpected burdens in Census Bureau’s prison miscounts

by Leah Sakala, February 16, 2012

We generally focus on how the Census Bureau’s practice of counting incarcerated people as residents of the prison, rather than of their home addresses, causes problems for electoral redistricting. But while prison-based gerrymandering may be the biggest problem caused by the Census Bureau’s prison miscount, it certainly isn’t the only one.

More and more examples keep popping up across the country, all with a common thread: incarcerated people are not part of the communities in which they are confined, and relying on data that assumes otherwise creates unforeseen problems.

A common response is to chase the symptom and change a state law or municipal code every time a community with a prison is faced with an absurd result. In my view, the ideal solution is for the Census Bureau to respond to shifting social data needs by counting incarcerated people at home. In the meantime, though, I thought it might be useful to gather together in one place some of the examples I’ve found of non-redistricting problems with the Census Bureau’s prison count:

1. Raising costs for building inspector administration and public safety assessments:
   In 2010 the Maine State Prison was relocated to the town of Warren, Maine, raising the town’s official 2010 Census Bureau population by more than 900 people and pushing it over the 4,000 mark that mandates the enforcement of the Maine Uniform Building and Energy Code and increases the town’s dispatch fees. As the Warren Code Enforcer Bill O’Donnell pointed out, “Counting inmates in the town’s population is a grave mistake and poses undue hardship for the residents of our community.” In response, state Representative Wes Richardson introduced legislation to exclude the incarcerated population from the town’s official count. The bill, LD 1697, passed the Legislature’s Labor, Commerce, Research and Economic Development Committee unanimously on February 9.
2. Creating expensive voting precincts for people who are not permitted to vote:
   Massachusetts state law prohibits any single voting precinct in the state from exceeding a maximum size. While this good way to ensure that all citizens can access the polls on election day, towns with large prisons suddenly found themselves in a difficult position when figuring out how many precincts to draw because their official populations are inflated by incarcerated populations that are prohibited from voting. In order to avoid having to create, staff, and pay for a voting precinct for people who can’t vote, four towns with large prisons (Harvard, Lancaster, Middleton, and Shirley) have each needed special legislation to exempt themselves from the requirement.
3. Being forced to adopt expensive recycling systems without having sufficient recycleables:
   The 3,717 residents of Kelly, Pennsylvania ran into a quandary when the 2010 Census included a large Federal prison in the township’s official population count, reporting 5,500 people in Kelly. This suddenly made the township responsible for enforcing a 1988 Pennsylvania statute that mandates curbside recycling for areas with large or dense populations. Not only would the unnecessary curbside program be costly for Kelly, but the township wouldn’t even be allowed to take over the prison’s federally-run recycling system if it wanted to.

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NY Court of Appeals declines to hear direct appeal in suit against law ending prison-based gerrymandering

February 14, 2012

For Immediate Release: February 14, 2012

The New York Court of Appeals today declined to hear plaintiffs’ direct appeal in Little v. LATFOR, a lawsuit challenging New York’s law ending prison-based gerrymandering. The plaintiffs — who include upstate elected officials who would no longer unjustly benefit from claiming incarcerated people as residents of their districts — had sought to skip the Supreme Court’s Appellate Division and go directly to the Court of Appeals.

In December, New York Supreme Court Justice Eugene Devine ruled that the law was constitutional. Plaintiffs’ appeal will now proceed to the Appellate Division Third Department.

Attorneys for the 15 voters from around New York State who joined the suit as intervenor-defendants issued the following joint statement:

“Today’s decision leaves in place New York’s law ending prison-based gerrymandering, which advances fairness in redistricting and is in complete agreement with New York’s state constitution. The opponents of this law lost the policy debate in the legislature, and their efforts to reinstate the old unjust practice of prison-based gerrymandering have so far been unsuccessful in the courts. We look forward to defending this vital law at the appellate division.”

The organizations representing the fifteen voters in court were the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative.

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

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Will Doolittle: Change in inmate counting is only a start

by Leah Sakala, February 3, 2012

Because discussions about prison-based gerrymandering are sometimes very technical and numbers-based, it can be easy to lose sight of the bigger criminal justice policy picture. Will Doolittle’s new column in the Glens Falls Post-Star zooms way out to ask what prison-based gerrymandering can reveal about broader inequalities in the criminal justice system.

Ending prison-based gerrymandering in New York was a smart move, he says, but there’s more work to do to address disporportionate incarceration rates and rural prison industries:

Far too many of our young urban men in New York spend often-brief sojourns in rural prisons that stigmatize them for the rest of their lives, exposing them to legal discrimination and relegating them to a lower class existence.

Laws may be colorblind, but the criminal justice system is not, unfortunately. White and black people use illegal drugs at about the same rates, for example, but a much higher percentage of black people than white are arrested, prosecuted and imprisoned for drug crimes. Most of these people are young men, and once convicted, their road to a constructive, satisfying life is particularly steep.

In prison, they are numbers, little more. So many inmates per prison, so many inmates per correction officer, so many inmates per upstate job.

New York should be praised for ending prison-based gerrymandering, but other reforms to improve the criminal justice system must follow:

Prisoners bear responsibility for their actions and the only way for an individual to transcend his incarceration is to first take responsibility for where he has ended up.

But step back and consider all the black and brown young men passing through our state prisons on their way to lives of severely curtailed opportunities. It’s wrong on its face.

They’re being counted where they should be now, but they still don’t count as much as they should.

Virginia bill against prison-based gerrymandering passes House unanimously

by Leah Sakala, February 2, 2012

Yesterday HB 13, which would allow more counties to reject prison-based gerrymandering, passed unanimously in the Virginia House. The bill, sponsored by Del. Riley Ingram, will now advance to the Senate.

Current Virgina law allows a county to exclude prison populations for redistricting purposes only if the prison population makes up 12% or more of the county’s total population. HB 13 would allow any county with a single district that’s 12% or more incarcerated to exclude prison populations for redistricting purposes, more than doubling the number of counties eligible to avoid prison-based gerrymandering.

As the Roanoke Times so succinctly put it, HB 13 “would move the commonwealth in the right direction” towards ending prison-based gerrymandering.

Prison law about fairness, not partisanship

by Leah Sakala, January 27, 2012

In reviewing recent coverage of New York’s implementation of the 2010 law that ended prison-based gerrymandering, I was struck by how often partisan interests misrepresent a law that protects the fundamental Constitutional mandate of “one person, one vote.”

The Daily News recently published a letter to the editor by PPI’s Executive Director Peter Wagner that clarifies that the New York law is about fundamental democratic fairness, not petty partisanship. Upstate counties, it turns out, took the lead in rejecting prison-based gerrymandering because of the way it was distorting their districts.

As Peter explains:

Prison law about fairness, not partisanship

The law ending prison-based gerrymandering was far from a partisan power grab. (“Area lawmakers say prison population changes are ‘political power grab,’” story, Jan. 13) The law put the state’s redistricting practices in line with the state constitutional definition of residence and with the redistricting practices of most upstate counties.

The state Constitution says that: “no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence … while confined in any public prison.” The law corrects the U.S. Census data to comply with the state constitution.

The new law applies to both state and county redistricting, and the law was inspired in part by the 13 upstate counties (including Wyoming) that have traditionally refused to use prison populations when drawing county districts or setting weighted votes in the Boards of Supervisors.

According to my research, the biggest winners under the new law are the residents of neighboring Livingston County. There, more than half of the weighted votes attributed to the town of Groveland — and exercised by the county’s boards chairman — are from claiming prisoners as constituents. It is blatantly unfair for some people to have more political influence just because they live next to a large prison.

Wyoming County got it right years ago, and the new state law requires everyone to use the same fair approach.

Peter Wagner
Easthampton, Mass.

The writer is executive director of the Prison Policy Initiative and author of “Importing Constituents: Prisoners and Political Clout.”

Missouri Municipal Review: Prison Populations Create Complications at Redistricting Time

by Peter Wagner, January 27, 2012

The January, 2012 issue of the Missouri Municipal Review includes my new article on how the Census Bureau’s prison miscount creates problems for Missouri cities at redistricting time. Since the Census Bureau counts incarcerated people as they they were residents of the cities in which they are confined, city officials who are redrawing city council lines must decide whether the people who live next to the prison should be given more influence over city affairs than other residents.

The article grew out of our work in the City of Pacific, where the city proposed drawing a city council district where almost half of the population was incarcerated, thereby diluting the votes of residents in all other districts.

The article explains that both federal law and Missouri state law permit municipalities to adjust their redistricting data to avoid prison-based gerrymandering, and at least two Missouri cities have successfully done so this redistricting season.

The article includes a section on Missouri state law, but it also includes a good national introduction to the topic, with sections on federal law and a detailed discussion of the factual and legal precedent for avoiding prison-based gerrymandering across the country. In the article, I explain that removing prison populations from redistricting data is a common (and common sense) approach used by more than 100 local governments across the country. The article ends with a discussion of best practices for avoiding prison-based gerrymandering.

The article came out too late for some cities that have completed their redistricting — Fulton has a district that is 47% incarcerated, Chillicothe has a district that is 39% incarcerated, and St. Joseph has a district that is 13% incarcerated — but the article will hopefully help other cities as they update their districts.

How Prison-based Gerrymandering Changes District Lines

by Leah Sakala, January 27, 2012

Curious about why prison-based gerrymandering is a big deal when it’s time to draw districts?

We have a new video that explains how prison-based gerrymandering can alter district lines. The video uses as its example a district that was drawn in New York after the 2000 Census.

For more videos about prison-based gerrymandering and redistricting, check out our video page.

New York Times editorial board praises court’s decision to uphold Maryland law ending prison-based gerrymandering

by Leah Sakala, January 17, 2012

Today the New York Times editorial board praised a Federal District Court’s decision to uphold the 2010 law that ended prison-based gerrymandering in Maryland. The law had been challenged by plaintiffs in Fletcher v. Lamone.

The editorial states:

Counting Voters Fairly

A Federal District Court late last month wisely upheld a 2010 Maryland law that counts prison inmates as residents in their home communities for purposes of redistricting, rather than at the prisons where they are incarcerated.

The practice of counting inmates as local “residents” — even though they lack the right to vote — has been used to inflate the power of mainly rural areas where prisons tend to placed. It undercuts the power of the urban districts where the inmates actually live and where they generally return when they are released.

There are about 1.5 million people in prison nationally. Prison-based gerrymandering can easily be used to unfairly shift power from one part of a state to another. In Maryland, this gerrymandering distorted the political landscape. In one county commission district, for example, inmates made up 64 percent of the population. In one state legislative district, nearly a fifth of the population were inmates.

The state law was explicitly drafted to advance the interests of minority citizens, who are disproportionately represented among inmates and who stand to lose most when political power is shifted away from their home districts. A small group of voters challenged the law, arguing, in essence, that it was illegal for the state to correct for prisoner-related population distortions.

The court rightly dismissed this argument, adding that the state was within its rights to adjust census data for redistricting purposes. This sound ruling should encourage more states to join Maryland, New York, Delaware and California in adopting similar anti-gerrymandering laws.

Case documents, related materials, and selected news coverage are available on our Fletcher v. Lamone page.

It’s “the law” not “a deal”

by Peter Wagner, January 13, 2012

Numerous press reports in the last few days have described the implementation of New York’s law ending prison-based gerrymandering as a “deal”, with language like this one:

“Under the deal, prisoners won’t be counted if records can’t identify the specific election district they lived in last.”

That’s factually incorrect. The “deal” was that the Assembly and the Senate agreed to follow the law which requires that the ‘populations’ of prisons not be used as the basis for drawing districts, and that prisoners be counted instead at their prior home addresses. The law further requires that those whose homes are out-of-state, or for whom address information is lacking, not be included in the redistricting database.

While the Senate Majority made it clear they did not like the law, they never contested this reading of the law. During the most recent round of stalling over implementation of the law, the dispute within the Legislature’s Redistricting Task Force appears to have been over the adequacy of some of the available address information and over which software package was most appropriate for locating the home addresses.

Given the partisan vortex in New York, it’s easy to see how reporters coming late to the issue, and interviewing back-bench politicians, could write stories that conflate pre-existing details of the law with a groundbreaking “deal”. But what the Senate and Assembly finally agreed to do on January 10 was to stop arguing over microscopic details and to release one adjusted dataset that can be used for state and local redistricting. In other states, that wouldn’t even be “news”, let alone a “deal”.

New Race, Poverty & the Environment issue includes article on prison-based gerrymandering

by Leah Sakala, January 13, 2012

The newest issue of Race, Poverty & the Environment includes a “Geography of Race” section with an article I wrote on how the Census Bureau’s miscount of incarcerated people distorts our democracy and impedes racial justice. The Race, Poverty & the Environment journal is a project of Urban Habitat.