The Census Bureau counts Massachusetts prisoners as if they were residents of the communities where they are incarcerated, even though they can’t vote and remain legal residents of the places they lived before they were incarcerated. Crediting thousands of mostly urban and minority men to other communities has staggering implications for modern American democracy, which uses the Census to apportion political power on the basis of equally-sized legislative districts. Without accurate data about where the population actually resides, fairness is impossible.
The Census Bureau has always counted prisoners as residents of the prison location, but it is only recently that the population in prison is large enough to effect legislative districting. As recently as 1980, the Massachusetts prison system had 2,754 prisoners, compared to 4 times as many in 2000.
The problem lies in the fact that the Census Bureau is counting this large population in the wrong place. The Census Bureau’s definition of residence is incompatible with state law. A legal residence is the place that people choose to be and do not intend to leave; and because prison is not voluntary, it cannot be a residence. Until 2000, incarcerated Massachusetts residents could vote, and where they could vote was a frequent subject of litigation. In the late 1970s, people in prison were considered to be presumptive residents of their home addresses. Only in rare special situations, could an incarcerated person argue that he intended to remain in prison permanently; but by the early 1980s, even this narrow loophole was removed and all incarcerated voters in the state were required to vote as residents of their pre-incarceration homes.
Today, our conception of democracy requires far more detailed and accurate data to reflect where the population — including people in prison — actually lives. In almost every respect, except for how it counts people in prison, the Census Bureau’s methodology has evolved to keep pace with the changing needs for its data. But now that such a large percentage of the population is incarcerated, where the Census Bureau counts people in prison is a question of critical importance.
Five of Massachusetts’ House districts meet federal minimal population requirements only because the state treats prisoners as residents of the district with the prison. To ensure that each resident has equal access to government, regardless of where she or he lives, federal law requires legislative districts each contain the same population. When districts are of substantially different sizes, the weight of each vote starts to differ: in under populated districts, each vote is worth more, and in overpopulated districts, a vote is worth less.
By Massachusetts’ law, prisoners can’t vote and are considered legal residents of their pre-incarceration addresses. But by using Census Bureau counts of prison populations to pad out legislative districts with prisons, Massachusetts is inflating the votes of residents who live near prisons.
The U.S. Supreme Court first declared that the “One Person, One Vote” principle applied to state legislative redistricting in the 1963 landmark case Reynolds v. Sims. The Court struck down an apportionment scheme for the Alabama state legislature that was based on counties and not population. Under Alabama’s apportionment plan, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This gave the residents of Lowndes County 41 times as much political power as the residents of Jefferson County. Reynolds v. Sims barred this practice and put it plainly: “The weight of a citizen’s vote cannot be made to depend on where he lives.” The Supreme Court ruled that the 14th Amendment’s equal protection clause required that districts be drawn to be substantially equal in population.
Subsequent U.S. Supreme Court cases defined the limits of “substantially equal.” In White v. Regester, the Court ruled that the state of Texas was not required to justify how it drew lines resulting in an average district deviation of less than 2% and a maximum deviation of 9.9%. Allowing these small differences in district population sizes helps to protect other legitimate state interests, such as keeping communities of interest in the same legislative district. Today, most states draw their districts so that the smallest district is no more than 5% smaller, and the largest no more than 5% larger, than the average district. This keeps the difference between the largest and smallest district within 10%.
In Massachusetts, a State House of Representatives district is supposed to contain 39,682 people, plus or minus 1,984 people. The legislative commission that drew Massachusetts’ districts in 2001 met the federal standard of population equality, but only because prisoners were counted in the wrong place.
For example, the 37th Middlesex, currently represented by Jennifer Benson (D), contains a little over its required Census population with 40,520 people, but 3,013 of that population is actually incarcerated at MCI Shirley, Souza-Baranowski Correctional Center, FMC Devens, and MCI Lancaster (since closed). Without using the prison population as padding, the actual population of the district is 37,507, smaller than that allowed by federal law.
Similarly, the 9th Norfolk, represented by Richard Ross (R), contains a little over the required Census population with 40,024 people. But the actual population — without the 2,596 people incarcerated at MCI Norfolk, Baystate Correctional Center, Pondville Correctional Center, and MCI Cedar Junction — of 37,428 is also smaller than that allowed by federal law.
Of the five districts with unconstitutionally small actual populations, the 14th Worcester district has the smallest number of incarcerated people: 1,220 incarcerated at Worcester County Jail and House of Correction. By Census figures, this district has 3% less population than the average district; without using the jail to pad its population, the district is short 6.4% of the required population.
Similarly, the 7th Hampden District has both a smaller Census population and uses a larger population at the Hampden County House of Corrections. The actual population of this district is more than 8% smaller than the average district in the state, giving every group of 92 residents in Ludlow and some of the surrounding areas as much political power as 100 residents elsewhere in the state.
Finally, the 3rd Suffolk District, which until January was held by Speaker Salvatore F. DiMasi, was drawn to contain fewer constituents than any other district. By the Census figures, the district is amongst the smallest in the state, but relying on the 1,549 people incarcerated at the Suffolk County House of Correction to pad out the under-populated district, the actual population of the district is 8.2% smaller than the average in the state.
|District||Representative||Population (Census)||Prisoners||Actual population (without prisoners)||Population Deviation|
|3rd Suffolk||Aaron M. Michlewitz (D)||37,986||1,558||36,428||-8.20%|
|7th Hampden||Thomas M. Petrolati (D)||38,144||1,660||36,484||-8.06%|
|14th Worcester||James J. O'Day (D)||38,364||1,220||37,144||-6.40%|
|9th Norfolk||Richard J. Ross (R)||40,024||2,596||37,428||-5.68%|
|37th Middlesex||Jennifer E. Benson||40,520||3,013||37,507||-5.48%|
Massachusetts’ decision to rely on flawed Census counts of the prison population artificially enhances the representation afforded to specific districts with prisons and waters down the voting power of everyone else. These five legislative districts lack sufficient population to meet accepted one-person, one-vote standards without counting disenfranchised prisoners as part of their population base. At the same time, heavily minority urban districts would be entitled to additional representation if prisoners were counted as residents of their home communities for purposes of redistricting.
The Census Bureau’s decision to credit thousands of disenfranchised non-residents to the Census blocks with prisons creates serious problems for Massachusetts. This problem need not exist in the future, as the state can lobby the Census Bureau for change, or fix the data itself.
The U.S. Supreme Court requires states to draw new districts each decade on the basis of population, but states are not required to use the Census. The Census Bureau, which collects its data at great cost, wants states to use its data and has historically been responsive to the needs of its data users when deciding how to count the population.
The ideal place to fix the prisoner miscount is at the U.S. Census Bureau. The method of counting other special populations has changed numerous times, in each case responding to changing demographics and needs. For example, when more college students began studying far from home, the Census policy changed in order to more accurately reflect American living situations. The Census Bureau considers state and local redistricting to be the second most important use of its data and should therefore be responsive to requests for a new way of counting prisoners.
Unfortunately, the Census Bureau has squandered the critical planning time necessary to change where prisoners are counted in the 2010 Census. It is now too late to change where people in prison are counted in 2010, but if action is taken quickly, the Bureau 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 and minimize the harm of prison-based gerrymandering. The Census Bureau needs to hear from Massachusetts that alternative data would be helpful until a permanent solution can be crafted.
While states must redistrict on the basis of actual population, the U.S. Constitution does not require states to use the federal census for its own redistricting. Massachusetts can fix the Census data by creating a special state-level census that collects the home addresses of people in prison and then adjusts the U.S. Census counts prior to redistricting. Legislation with these goals is currently pending in New York, Texas and Oregon, and is patterned on how Kansas adjusts the federal census counts of military and students. As an interim solution, Massachusetts could follow the lead of Gardner, MA, and ignore the prison population when drawing districts.
Until the Census Bureau stops counting incarcerated Massachusetts residents in the wrong place, the state should take matters in to its own hands. Just as the city of Gardner did, the state has a duty to explore solutions that avoid unconstitutionally inflating the weight of votes of communities that happen to contain large prisons.
This research was supported by a grant from the Soros Justice Fellowship Program and the After Prison Initiative of the Open Society Institute.
An earlier version of this report was initially presented as a part of a Fall 2002 group project for Professor Arthur D. Wolf’s Legislation class at the Western New England College School of Law in Springfield Massachusetts. For that paper, Dan Mazzone assisted with the painstaking process of manually merging Department of Corrections, U.S. Census and Massachusetts General Court data. Classmates Dan Mazzone, Keeana Saxon, Erin Ogulnick and Ken Sloat and Professor Wolf provided invaluable feedback for the academic precursor to this report.
The data in this report was prepared by GIS analyst Rose Heyer who used the earlier manual results as a way to gauge the accuracy of the automated analysis she developed for the Prisoners of the Census project. For this effort, she relied upon the actual Census Bureau population counts at each state and federal correctional facility as counted and placed by the Census Bureau.
 Massachusetts Department of Correction, A Statistical Description of Residents of the Massachusetts Institutions on January 1, 1980 (Massachusetts Department of Corrections, 1980), 2-3; Research and Planning Division, January 1, 2000 Inmate Statistics (Massachusetts Department of Correction, May 2000), iii, (reporting 10,702)
 See MA Const. Chapter I, Section II, Article II. “And to remove all doubts concerning the meaning of the word “inhabitant” in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office, or place within this state, in that town, district or plantation where he dwelleth, or hath his home.”
Also, the Supreme Judicial Court addressed the direct question of the compatibility of the federal census with the Massachusetts State constitutional definition of inhabitant in a 1974 Advisory opinion. Asked by the House of Representatives to determine whether the state census could use the “usual residence rule” of the federal census in conducting the state census, the Court issued a very clear “no.” Reiterating that the federal census uses a simple method and ignores domicile, the Court concluded:
We think it clear without elaboration that a census that determines the place of which a person is an inhabitant on the basis of where he or she lives and sleeps most of the time will not satisfy the requirement of the Constitution of the Commonwealth that a person be assigned as an inhabitant to the place of his or her domicil. Opinion of the Justices, 365 Mass 661, 663-664 (1974).
 In Dane v. Board of Registrars of Concord 374 Mass 152 (1977), the Supreme Judicial Court reiterated that prisoners are presumptively residents of their home districts and not of the prison district, although it did allow the Concord registrar to accept registrations from prisoners who had shown they had willingly established themselves as residents of the town of Concord. When such a showing was not present, the Supreme Judicial Court upheld the refusal of the Norfolk registrar to register 619 residents of Norfolk prison as residents of the town. Paul Ramos v. Board of Registrars of Voters of Norfolk, 374 Mass. 176 (1978) Subsequent legislation and Cepelonis v. Commonwealth, 389 Mass. 930 (1983) effectively removed this narrow discretion and required prisoners to vote via absentee ballot in their community of origin. Regardless of whether a specific prisoner was intending to never return home, state law barred him from adopting the prison address as his residence.
 Reynolds v. Sims, 377 US 533 (1964).
 White v. Regester, 412 US 755 (1973).
 In Bethel Park v. Stans, 449 F. 2d 575 (C.A. 3, 1971) the city of Philadelphia and a Pennsylvania congressman sued the Census Bureau for counting military personnel, students and prisoners at their temporary addresses instead of their home addresses, because the plaintiffs feared a loss of representation. The court stated that “Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.” Bethel Park v. Stans, 449 F. 2d 575, 583 (C.A. 3, 1971).
Two years later, when faced with a similar issue, the Supreme Court rejected Virginia’s argument that it was compelled to use the Census Bureau’s assignment of residences to military personnel when drawing state legislative districts. Mahan v. Howell, 410 U.S. 315, 331 (1973).
New York Senate Bill S1633 introduced by Senator Eric Schneiderman is the ideal version of this legislation as it includes a specific provision that would apply the census adjustment not only to senate and assembly districts, but to county districts as well.
In Kansas, “Senatorial and representative districts shall be reapportioned upon the basis of the population of the state adjusted: (1) To exclude nonresident military personnel stationed within the state and nonresident students attending colleges and universities within the state; and (2) to include military personnel stationed within the state who are residents of the state and students attending colleges and universities within the state who are residents of the state in the district of their permanent residence.” KS CONST. art. 10 S 1.