New analysis shows that the Census’ flawed way of counting incarcerated people is increasingly harming rural areas — and both political parties.

by Aleks Kajstura and Mike Wessler, February 26, 2024

The 2020 redistricting cycle was a turning point in the effort to end prison gerrymandering. Fixing the Census Bureau’s flawed way of counting incarcerated people was once considered a niche issue, but after 2020 is now “the fastest-growing trend in redistricting,” according to the fiercely bipartisan National Conference of State Legislatures.

We previously looked at the experiences of states that have addressed prison gerrymandering after the 2020 Census. We wanted to also see what happened in states that haven’t fixed this problem to see what it tells us about how this issue plays out across the country as we look toward the 2030 count.

To do this, we examined the ten state legislative districts1 where, according to Census data, people held at correctional facilities account for the largest percentage of the district population.

These ten worst prison gerrymanders in the nation show the problem is increasingly harming residents of rural states and defying some of the preconceived notions about partisan impacts.

The 10 Worst Prison Gerrymanders After 2020 Redistricting
State District Percent of district’s Census population incarcerated What party holds the seat?
New Hampshire House District Merrimack 17 49.5% Democratic
West Virginia House District 83 18.4% Republican
Mississippi House District 47 17.7% Democratic
Mississippi House District 68 16.6% Democratic
Oklahoma House District 56 14.0% Republican
Wyoming House District 2 13.6% Republican
Mississippi House District 26 13.6% Democratic
Arkansas House District 65 13.5% Democratic
West Virginia House District 45 12.6% Republican
South Carolina House District 73 12.0% Democratic


Rural states bear the burden of the Census Bureau’s error

This analysis shows that prison gerrymandering is a problem increasingly harming residents in some of the most rural states. While some might be tempted to chalk this up to the political dynamics of those states — we explain later in this piece why this seems increasingly unlikely — the truth is this is likely more a reflection of the Census Bureau shifting its responsibilities to over-burdened state governments and the series of trade-offs this forces states to make.

Prison gerrymandering is a problem created by the Census Bureau. Every ten years, it erroneously counts incarcerated people at the location of the facility they happen to be on Census Day rather than in their home communities. When state and local governments use this data for redistricting, they inadvertently give communities that contain prisons greater political clout at the expense of everyone else.

If states want to draw fairer districts by ending prison gerrymandering, they have to take on the task of fixing the flawed Census Bureau data to count incarcerated people at their true homes. This takes time, effort, and money, three rare and valuable commodities during redistricting.

To be clear, fixing prison gerrymandering is not a hugely expensive endeavor.2 But state budgets are a series of trade-offs and compromises. If lawmakers have the chance to spend even a few thousand dollars on direct services to their residents or can use that money to fix the Census Bureau’s mistake that caused prison gerrymandering, which do you think they’re likely to choose?

The experience of Montana, a state that has addressed prison gerrymandering despite its comparably small budget, shows the budgetary tricks or luck that states have to rely on to fix this Census Bureau mistake. During the 2020 redistricting cycle, commissioners in that state were unanimous in their desire to address prison gerrymandering, but it almost did not happen because they didn’t have the money to adjust the Census redistricting data to count incarcerated people at home. Ultimately, they could only implement this change because COVID-related restrictions meant that they could use money initially allocated for travel instead to end prison gerrymandering.

Some might be tempted to ask, “Why should the Census Bureau take on this effort instead of the places that want to change the data?” The simple fact is that the Census Bureau has a duty to provide states with redistricting data fit for use — a duty that the emerging consensus among states shows they are not meeting. State and local governments have been loud and clear, they want the Bureau to fix this problem.

Roughly half of all U.S. residents now live in a city, county, or state that has ended prison gerrymandering, with more almost certain to join them before the 2030 redistricting cycle. The Bureau’s stubborn refusal to change how it counts incarcerated people is a liability for a rapidly growing swath of the country and a disincentive for more places to join their ranks.

Additionally, it is important to remember that apart from any concerns about taking on additional burdens and redistricting time, states can only partially solve the problem. Prison gerrymandering is a national problem that crosses jurisdictional boundaries. No city, county, or state can completely fix this issue on its own. Only the Census Bureau can fully solve this problem nationwide.


Prison gerrymandering is not a partisan issue

Redistricting is notoriously contentious, with politicians working to gain leverage for their party in state houses.

While some have sought to paint the effort to end prison gerrymandering as a partisan tool in those fights, this analysis firmly busts that myth. These data show that both parties are harmed by prison gerrymandering.

Of these ten districts, six are districts controlled by Democrats, while Republicans control four. Notably, the district most distorted by a prison, New Hampshire’s Merrimack 17, is currently held by a Democrat. Prison gerrymandering distorts this district so severely that residents there have twice the political clout of residents of any other district in the state without a prison.

This is the latest piece of evidence that prison gerrymandering reform regularly defies traditional political expectations:

This analysis makes clear that neither political party is a guaranteed winner in prison gerrymandering. But, the clear loser in prison gerrymandering is every resident who doesn’t live in a legislative district with a prison.


What does this data tell us about 2030?

The 2030 Census may seem far away, but the Bureau has already begun planning for the count. It will likely decide where to count incarcerated people in the next two to three years.

This new analysis, which shows that the burden to correct flawed Census data increasingly falls on rural states and that prison gerrymandering is an issue that defies traditional partisan assumptions, should weigh heavily on their decision.

As we wait for the Census Bureau to decide, state lawmakers — particularly in these states with the worst prison gerrymanders — should start laying the groundwork to fix this problem should the Bureau fail to act. This means passing legislation now to ensure the state has the data and expertise it needs to successfully implement reform to end prison gerrymandering during the 2030 redistricting cycle.



  1. This analysis is based on districts as they stood after the initial redistricting period after the 2020 Census. Some of these states may have adjusted their districts since then.  ↩

  2. It is important to note that, if a state ends prison gerrymandering does not change how the federal government allocates funding to that state. Ending prison gerrymandering impacts political representation, not funding.  ↩

Courts in Michigan and Wisconsin have stuck down their legislative maps, providing a rare mid-decade opportunity to immediately end prison gerrymandering.

by Mike Wessler, January 17, 2024

While most people around the country were focused on the festivities of the holiday season, courts in two states — Michigan and Wisconsin — ordered them to redraw their legislative districts after they were ruled unconstitutional. This move provides each state with a rare opportunity to address prison gerrymandering in the middle of a decade, rather than waiting for the next Census.

Prison gerrymandering is a problem created by the Census Bureau. During its tally every decade, it erroneously counts incarcerated people as residents of prison cells, rather than in their home communities, artificially inflating the population of prison towns. When states then use this data to draw new legislative districts, areas that contain prisons get additional political clout, at the expense of everyone else.

More than a dozen states have taken action to fix the Census Bureau’s error — including “red” states like Montana and “blue” states like California. Momentum on this issue has been so swift, in fact, that the fiercely bipartisan National Conference of State Legislatures recently called it “the fastest-growing trend in redistricting.” Roughly half the country now lives in a place that has addressed the problem.

The court-ordered redistricting in Michigan and Wisconsin gives each state a chance to join this growing movement, but they have to act fast.


Michigan’s chance to address racial disparities

In late December, federal judges ruled that 13 Detroit-area state legislative districts unfairly diluted the political clout of Black residents, and ordered the state’s independent redistricting commission to redraw them for the 2024 elections. Commissioners have until February 2 to produce new maps.

While the court only explicitly ordered that 13 districts be redrawn, changing the lines of these districts will almost certainly have statewide ripple effects.

Because the court ruling involved the dilution of Black representation, it is important to remember the disproportionate impact that prison gerrymandering has on Black residents in the state. Black residents are 13% of the state’s population but 51% of the people in state prisons. As a result of this disparity and the state’s failure to address prison gerrymandering, Black political representation across Michigan is being unfairly diluted.

As the redistricting commission draws new districts, it should address prison gerrymandering to return some political clout to Black communities in the state. In addition, the legislature should adopt Sen. Sylvia Santana’s bill to end prison gerrymandering in the state permanently. The state already prohibits prison gerrymandering in local government districts; ending it in state legislative districts is the next logical step.


Wisconsin’s opportunity to draw more fair districts

The day after Michigan’s districts were struck down, the state Supreme Court in neighboring Wisconsin also struck down that state’s legislative maps. Wisconsin has long been considered one of the most politically gerrymandered states in the nation. This order provides an opportunity to draw fair Wisconsin maps for the first time in decades.

Addressing prison gerrymandering won’t solve all of the issues with Wisconsin’s current legislative districts, but it will be a meaningful step toward ensuring fairer representation in the state.

Is there enough time for these states to address prison gerrymandering?

Time is tight, but there is an quick — albeit imperfect — solution to address the worst impacts of prison gerrymandering.

Both of these states are unquestionably working on tight timeframes. Some will question whether they have the time or data necessary to fully address prison gerrymandering in these new legislative maps.

Ending prison gerrymandering completely by counting incarcerated people in their home districts is obviously the preferred solution, but mapmakers in these states shouldn’t let the perfect be the enemy of the good. There is a simple — albeit partial — solution that can address the most distortive impacts of prison gerrymandering and can be implemented quickly, even if the states don’t have address data for people in prison.

Here’s how this solution works. When drawing new maps, instead of counting incarcerated people as residents of the district that contains the prison, mapmakers reallocate this population statewide. While this will not fully return political representation to the communities most impacted by incarceration, it will ensure that communities that contain prisons don’t get a dramatically outsized voice in government.

For example, in Wisconsin’s Assembly District 53, roughly 8% of people counted in that district are incarcerated and live outside of that area. That means that 92 residents of that district have the same political sway as 100 residents in any other district that doesn’t have a prison. Ending prison gerrymandering will ensure that residents of this district don’t get a louder voice in government, simply because they live near a prison.

Recognizing that the governor and state legislature would be unlikely to reach a consensus on new maps, the court appointed two experts to review the submitted maps. They can then either alter the submissions or produce their own maps that resolve the court’s concerns. Notably, these experts have helped Virginia, Pennsylvania, and New York — three states that have addressed prison gerrymandering — draw their current legislative districts. Since these two experts already understand this issue and the ways to solve it, the final maps they propose should address prison gerrymandering to the fullest extent possible.


Failure to act means at least eight more years of prison gerrymandering

Redistricting officials in these two states have a lot of work ahead of them, and not much time to do it in. Ending prison gerrymandering in the state should be near the top of their list of priorities.

We’re hopeful that the Census Bureau will fix its prison gerrymandering mistake in the 2030 count. But Michigan and Wisconsin don’t have to wait that long to fix their prison gerrymandering problem. They have an opportunity to end prison gerrymandering while addressing problems with their state legislative maps right now. They should take advantage of it.

Jazz was a driving force for ending the disenfranchisement of incarcerated people and a powerful ally in our efforts to combat prison gerrymandering.

by Peter Wagner, January 12, 2024

On Saturday, January 6, voting rights pioneer and Prison Policy Initiative Advisory Board member Joseph “Jazz” Hayden passed away. He will be missed.

While Jazz Hayden was incarcerated in New York State, he developed a lawsuit arguing that the New York State’s disenfranchisement of incarcerated people violated the federal Voting Rights Act. He filed the first version of this lawsuit himself, and after his release, he recruited the NAACP Legal Defense Fund to take the case, then called Hayden v Pataki. While not directly successful, the lawsuit sparked a public movement and led to New York restoring the right to vote to people on parole. (New York restored these rights by executive order in 2018 and then by law in 2021.)

I first met Jazz at a conference in the summer of 2003, shortly after I published our first report on prison gerrymandering, Importing Constituents: Prisoners and Political Clout in New York. Jazz was a powerful and helpful ally. Building on his work to end disenfranchisement of incarcerated people, he often talked about how barring incarcerated people from the polls was related to but distinct from the implications of counting incarcerated people in the wrong location for the purposes of redistricting. Both problems reduce the political power of communities of color and further encourage more prison expansion; but the solutions were separate. At the early stages of both movements, it was invaluable to have Jazz’s endorsement on our Advisory Board to help us explain the relationship of these two issues to our growing list of allies and supporters.

Jazz had other impacts on the criminal legal system and it seems fitting to highlight one of his lesser-known but long-lasting contributions. And through his campaign against police brutality in New York City — which will surely be chronicled by others — Jazz developed a lot of camera skills which he applied to our 2005 report about the for-profit video “visitation” industry. With his efforts, we were able to take the first steps towards successfully convincing the public and policymakers that grainy, glitchy video chats could not be considered a replacement for in-person visits in prisons and jails. That industry’s growth has been slowed, and in early 2023 Congress gave the Federal Communications Commission formal jurisdiction over the industry.

I encourage you to also read this statement from the Legal Defense Fund, which highlights more of Jazz’s important work.

We’ll miss you Jazz.

Report highlights growing bipartisan support for counting incarcerated people in their home communities.

by Mike Wessler, November 9, 2023

A new report from CHARGE (the Coalition Hub for Advancing Redistricting & Grassroots Engagement), a coalition of good-government groups working to improve the redistricting process, makes clear that ending prison gerrymandering has quickly gone from an emerging issue done by only a handful of states, to being among the gold-standard redistricting practices.

Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people as residents of the wrong place — a prison cell — rather than in their home communities. When state and local governments use this data to draw new government districts every decade, they inadvertently give more political clout to districts that contain prisons, at the expense of everyone else.

The report is based on hundreds of interviews and surveys that members of CHARGE conducted with advocates and organizations involved in the redistricting process in each state. It gave every state’s redistricting process a grade from “A-” to “F”. In addition to addressing prison gerrymandering, these grades are also based on best practices related to transparency, opportunities for public input, the willingness of decision-makers to draw districts based on that input, adherence to nonpartisanship, empowerment of communities of color, and policy choices.

Several key findings related to prison gerrymandering emerge from the report:

  • Prison gerrymandering reforms have become increasingly nonpartisan: The report notes that in Montana, which it gave a B grade, “(d)espite a polarized atmosphere in which commissioners of different parties were unable to agree on final maps, the (Montana Districting and Apportionment Commission’s) vote to end prison gerrymandering was unanimous and bipartisan.”
  • States that addressed prison gerrymandering received some of the highest grades: 15 states received a grade of B- or higher; seven of them (California, Massachusetts, Colorado, Montana, Nevada, New Jersey, Washington) had already taken action to address prison gerrymandering. Another state in this group, Maine, has since also passed legislation for the 2030 redistricting cycle.

This report follows a report by the National Conference of State Legislatures (NCSL), which looked at states’ experiences ending prison gerrymandering during the 2020 redistricting cycle. In an accompanying briefing, the organization notes that ending prison gerrymandering is “the fastest-growing trend in redistricting.”

While the best way to address prison gerrymandering is for the Census Bureau to change how it counts incarcerated people, these reports show that states can and should take action to address the problem on their own. And, even though the 2030 redistricting process is still several years away, now is the ideal time for them to do so. Passing legislation now will ensure states have the data and process in place to take on this task after the 2030 count, it will also add their voices to the growing chorus calling on the Census Bureau to change its outdated policy.

These two reports, when taken together, highlight the need — and growing bipartisan calls — for the Census Bureau to finally take steps to end prison gerrymandering nationwide. As the 2030 count draws closer, it remains to be seen whether the Bureau will get an A or an F on this easy test.

New national op-ed shows the growing bipartisan calls for the Census Bureau to finally fix how it counts incarcerated people.

by Aleks Kajstura, August 30, 2023

The need to end prison gerrymandering is “obvious to anyone who looks at the facts.” That’s the conclusion of a bipartisan duo of Montana lawmakers, Sen. Shane Morigeau and Sen. Jason Small, in an op-ed published this week in The Hill.

Thanks to a bill sponsored by Morigeau and supported by Small, Montana is among the growing list of states that have ended the practice of prison gerrymandering. Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. When states use this flawed Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents. Montana’s actions limited that injustice in the state.

In the piece, the lawmakers explain the unique ways prison gerrymandering harms residents, particularly communities of color, indigenous people, and low-income individuals:

This power shift has dramatic policy impacts. A community with a high incarceration rate is more likely to support policies that address mass incarceration’s root causes — poverty, substance use and untreated mental health issues. But prison gerrymandering dilutes the voices of these communities, weakening their influence on lawmakers. Ending prison gerrymandering will ensure these communities have an equal voice in policymaking.

In Montana, there was wide bipartisan agreement that the Census Bureau gets it wrong when it comes to counting incarcerated people, which is why there was such a commitment to addressing the issue. The state’s independent redistricting commission was the first to tackle the problem for the 2020 redistricting cycle. Because of the tight timeframe and specialized knowledge needed, it had to hire — at taxpayer expense — outside experts to fix the census data to count incarcerated people at their true homes. And the state’s legislature followed suit, making the practice permanent, even if the Bureau fails to fix the problem once again.

The Senators highlighted the broad support for this change, “Despite [these challenges], the bipartisan commission got it done. Our legislature — controlled by a Republican supermajority — overwhelmingly voted with Democrats to make this change permanent, and our Republican governor signed it into law. ”

Morigeau and Small also call out the Census Bureau for selectively applying its residence rule to harm some of the country’s most disadvantaged people:

As its rationale for counting incarcerated people in the wrong place, the bureau cites its “usual residence rule,” which says they count people where they eat and sleep on most days. This sounds reasonable until you realize the bureau treats incarcerated people differently than others in similar situations. For example, it counts students at boarding schools at their home addresses, but children in juvenile correctional facilities are counted where they are detained, even though two-thirds of them will be there for less than six months.

Finally, the lawmakers ask the inescapable question: “With so many places clamoring for this change and more likely to join their ranks by 2030, why does the Census Bureau still force state and local governments to jump through hoops and spend money to fix a problem it created?” And they exhort the Bureau to fix the problem, stating that ” …ending prison gerrymandering should be near the top of its list of changes” for the 2030 census.

This op-ed is the latest evidence of the growing, bipartisan desire for the Census Bureau to fix how it counts incarcerated people. The question remains: will the Bureau listen?

In the first public comment period about the 2030 Census count, dozens of people called on the Bureau to end prison gerrymandering. We pulled together their comments, which show why this change is necessary, and the consequences of inaction.

by Aleks Kajstura, August 17, 2023

2030 is still years away, but the Census Bureau has already begun planning for the next decennial count. Last year, in one of the first steps of the 2030 Census, the Bureau asked for public input on ways to improve the process.

To anyone who has followed the growing, bipartisan momentum on the issue, it will come as no surprise that prison gerrymandering was a frequent topic of public comment. Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people in the wrong place, a prison cell, rather than at their true homes. This practice artificially inflates the populations of areas that contain prisons, giving these areas additional political clout when state and local governments use this Census data to draw new district lines every ten years.

The Bureau received dozens of comments on the topic from a diverse swath of people that are part of the nationwide momentum to end prison gerrymandering. (We already shared our comments, and a letter signed by 35 other criminal justice and voting rights organizations in November.)

The Census Bureau made these comments public, and we poured through them to understand what people were saying about this issue. These comments offer a rare opportunity to hear, in their own words, from incarcerated people, their families, advocates, and government officials about how the Bureau’s flawed way of counting incarcerated people exacerbates racial disparities, undermines our democracy, burdens state and local governments, and treats incarcerated people in a unique and unfair way.


Personal impact

The Census is a massive public undertaking, but it is also very personal. The Census counts over 300 million people, collects them into population totals, and publishes them as data tables that are fed into computers for redistricting. But getting counted correctly is still personal. By counting incarcerated people in the wrong place, the Bureau purposefully miscounts each of the 2 million people who are incarcerated on any given day.

As a member of Essie Justice Group, an organization representing women with incarcerated loved ones, explained in her comments counting incarcerated people in the wrong place disregards family connections:

Please end Prison Gerrymandering and count people for the next census in their homes, not where they serve in prison…. My loved one was in 3 prisons in 5 years. It is inaccurate to say he lived in any of them. He lived and now lives again home with his family.

And a formerly incarcerated person in St. Louis, Missouri, explained it ignores where incarcerated people themselves say they reside:

[D]uring the last census I was in Forest City Federal Prison. They never provided any of the prisoners census forms. So, I’m not sure if I was counted, but if I was, the information that they provided wouldn’t have been accurate. I feel that all prisoners should be accurately counted and counted toward where they came from, not where the prison is located.

Most incarcerated people are not given the chance to fill out a Census form. They are excluded from participation and know they cannot trust the Bureau to count them at home. When people perceive that this data doesn’t accurately reflect the true population and demographics, it erodes trust in the Census as a whole. If some individuals believe their communities are not adequately represented, they become skeptical of the entire process, which erodes trust in the Census in the very communities that it itself designates as hard to count.


Disparate racial impact

Rather than simply reflecting the racial inequality in society, by counting incarcerated people in the wrong place, the Census perpetuates and exacerbates existing systemic inequalities in society. By not accurately reflecting where incarcerated people live, the Census reinforces the marginalization of communities of color, skews representative power, and perpetuates the cycle of mass incarceration by hindering efforts to address broader issues of racial injustice and inequality within the criminal justice system.

In its comments, Fair Count, a Georgia-based advocacy organization that works to build long-term power in communities that have been historically undercounted in the census, offered suggestions on how the Bureau can address this problem:

Black people make up 38% of the incarcerated population, but only 13% of the general United States population. Considering the disproportionate rate of Black people that are likely to be incarcerated in their lifetime compared to White people and other people of color, it is especially critical to assess how data can be gathered fairly and accurately for this vulnerable population. The Census Bureau can partner with states that have already agreed to re-allocate Census data from incarcerated individuals back to their home addresses which entails mailing census forms directly to the incarcerated individuals for self-response. The goal would be to obtain more quality, accurate data on incarcerated individuals than incomplete, inaccurate data submitted to Census via administrative prison rosters.

Similarly, noting that there is a differential undercount of Black people in the Census, Voice of the Experienced (VOTE), a Louisiana-based organization working to reform the criminal legal system, points out in its comments that changing the way it counts incarcerated people could provide further opportunities for the Bureau to improve its data:

One reason that these undercounts exist is that … census data about those who are incarcerated is gathered by prison officials, rather than those who are actually imprisoned. It is widely understood that incarceration rates in the United States disproportionately impact people of color. … In turn, the census data that is gathered by prison officials fails to accurately reflect demographic statistics concerning issues such as the sex and race of those behind bars.

For instance, the Louisiana Department of Corrections demographic data on race is inaccurate as it only accounts for individuals who are “black” or “white.” …. There are no distinctions for incarcerated residents with other ethnicities and races such as American Indian, Asian and/or Asian American, and/or Hispanic. In addition, the DOC data on sex is reflective of an incarcerated individual’s sex at birth, and thus fails to account for individuals who are transgender.

Therefore, in order to truly reach everyone, the US Census needs to adjust the way that gathers data about those who are incarcerated by allowing this country’s incarcerated population to participate in the census.


Failure to meet state and local redistricting data needs

State and local government progress toward ending prison gerrymandering has been fast. Today, roughly half the country lives in a place that has addressed the practice. Progress has been so swift, in fact, that the National Conference of State Legislatures, a strictly bipartisan organization that assists state lawmakers on a wide range of policy issues, recently called it “the fastest-growing trend in redistricting.” However, the Census Bureau hasn’t kept up and as a result, has fallen short of its responsibility to provide states with redistricting data that is ready to use. Instead, states have to spend time and money correcting this data before they can begin the redistricting process.

As more states recognize that incarcerated people should be counted in their home districts, this problem will only get worse unless the Bureau takes steps to better meet redistricting data user needs.

In its comments, the California Legislature echoed the state’s independent redistricting commission’s request that the Bureau count incarcerated people at home and make that data available for state redistricting:

California’s independent redistricting commission voted unanimously to respond to the Federal Register Notice and request that data be provided that counts incarcerated people at their last-known residence instead of the address where they are incarcerated.

California wasn’t alone. Over a dozen states had to adjust Census redistricting data on their own to ensure that incarcerated people were counted at home. In its comments, the New Jersey Institute for Social Justice points out the unnecessary burden created by the Bureau:

[B]ecause the Bureau still uses prison gerrymandering in its national count, the burden of correcting the gerrymandered data for the purpose of redistricting falls to states and localities. Where the Census is supposed to provide data fit for use in redistricting, these states and municipalities must now use time and resources they do not have to readjust the data they receive from gerrymandered to non-gerrymandered.

The Census Bureau is failing to deliver one of its core objectives: providing states with the redistricting data needed to draw equal districts.

This isn’t just a problem states face. Over 200 local governments — most of which have even less money, time, and expertise to dedicate to redistricting — also must independently address prison gerrymandering when drawing city council and county commissioner districts.

As a redistricting advocate in Indiana explained:

Because of the distortions created by counting prisoners, several counties in Indiana already resort to crude attempts to correct the data by simply not counting people in prison when they redistrict. …

While changes in the way the redistricting data was published in 2020 made it easier for these local governments to exclude the prisons from their data, not all took this extra step. And they should not need to. The Census Bureau should publish data that does not put the burden on local government to make it suitable for redistricting.

The states and local jurisdictions aren’t going out on a limb — courts have consistently supported prison gerrymandering reform. In a change of pace from the comments that relied mostly on practical and moral reasoning, Dēmos submitted six pages of legal analysis, which came to the same conclusion:

[T]he facts and legal rulings discussed in this Comment make up only a small part of the vast record of evidence that the Census Bureau’s current residence rule, as applied to incarcerated persons, is outdated and no longer accurately reflects the population that it seeks to count.


Inconsistent with other Census rules

By counting incarcerated people in prison cells rather than their true homes, the Census Bureau treats them unfairly and differently than others in similar transitory situations. Incarcerated people are surprisingly mobile, yet, unlike other groups, the Bureau treats them as if they resided at the facility they happen to be assigned to on Census day.

A former New York State Senate redistricting staff member explained in his comments that Census policies on incarcerated people are inconsistent with its other practices for transient populations:

Counting prisoners at the places of incarceration is inconsistent with the treatment of other categories. Persons in military deployment and elementary and secondary school students at boarding schools are counted at their home addresses, even though they may be at their temporary locations much longer than many prisoners. Persons who travel between multiple homes get to decide where they wish to [be] counted, regardless of which home they happen to be occupying on Census Day. In New York City, where I live, the huge number of visitors from elsewhere in the US filling the hotels on Census Day will properly be counted at their permanent home addresses. This practice will be followed even though the visitors will be in their temporary Census Day location by choice, unlike the prison populations.

The counting of university students where they attend school is an entirely different matter. Unlike prisoners, they are eligible to vote at places where they attend school, and they are at those locations by choice. Moreover, the congressmembers and legislators representing those communities have a strong interest in making them attractive places to attend school. Elected representatives have no such relation with the prisoners held in their districts.


Undermining Democracy

The Census Bureau plays a central role in ensuring fair and accurate political representation, a fundamental aspect of a functioning democracy. But how it currently counts incarcerated people undermines its ability to accomplish this goal by stripping disproportionately incarcerated communities of their political voices.

The New Jersey Institute for Social Justice explained how the Census Bureau effectively reinstates slavery-era suppression tactics with its refusal to update the residence rules for incarcerated people:

As Black and other people of color are disproportionately incarcerated by the criminal justice system, the voting and political power of their communities are disproportionately weakened by this policy. Given that the vast majority of incarcerated people do not have the right to vote in this country, prison gerrymandering is a modern-day Three-Fifths Compromise.

A coalition of advocates in North Carolina also warned the Bureau against doubling down on practices that perpetuate racial inequality:

Many communities of color see a direct link between the history of slavery, Jim Crow, state-sanctioned racial violence, and the inequities of mass incarceration today, which forms the basis of distrust of government at all levels. By continuing the practice of counting incarcerated people at the site of their incarceration and not in their home communities, the Census Bureau is feeding into this history rather than making appropriate changes toward a more equitable future that fosters trust and collaboration between government and communities.


Following the states’ lead for 2030

Counting incarcerated people as if they resided at the prison or jail where they are held on Census Day is increasingly unjustifiable, and the practical challenges of addressing the problem are quickly falling away. As the League of Women Voters pointed out, the Bureau can now rely on two decades of state-led innovation to guide its efforts to address this issue:

As many local governments and state governments have navigated the process of correcting redistricting data to account for census data skewed by prison gerrymandering, the Census Bureau may consider consulting the experience of those jurisdictions to smoothly transition to gathering census information for incarcerated people at their home address.

The Census Equity Initiative and Funders’ Committee for Civic Participation succinctly summarized the path forward for the Bureau:

The Bureau should revise the Residence Criteria and Situations for the 2030 Census to enumerate incarcerated persons, including detained juveniles, at their last home address prior to incarceration. While the Bureau explores a change to its Residence Criteria for incarcerated persons, it should work with states that have changed their redistricting residence rules, along with state and local government associations and other interested stakeholders, on improving a methodology to count incarcerated individuals, including detained juveniles, in their home communities, rather than at the facilities in which they are incarcerated on Census Day.

In their own words, these incarcerated people, their families, advocates, and government officials made the clear case for why it is time for the Census Bureau to change how it counts incarcerated people. The current practice exacerbates racial inequities, frustrates state and local governments, undermines our democracy, and is inconsistent with its own practices.

As the Bureau moves forward on designing the 2030 count, one big question remains: When it comes to ending prison gerrymandering, will it listen to these calls for change, or will it stubbornly cling to outdated and inaccurate practices of the past?

New law, sponsored by Speaker of the House Rachel Talbot Ross, ensures people in state prison are counted for redistricting at the same place they vote.

July 5, 2023

On Friday, Maine Governor Janet Mills signed LD 1704/HP 1093 into law, officially ending prison gerrymandering in state legislative districts by counting incarcerated people at their home addresses for redistricting purposes. With this measure, sponsored by Speaker of the House Rachel Talbot Ross, Maine is one of 18 states that have addressed this issue to create fairer legislative representation.

Prison gerrymandering is a problem created by the Census Bureau counting incarcerated people as residents of their prison cells rather than in their home communities during the decennial count. This practice artificially inflates the populations of areas that contain prisons, giving these areas additional political clout when state and local governments use this Census data to draw new district lines every ten years. Reforms, like Maine’s, allow state officials to adjust their redistricting data to count people in prison at their pre-incarceration address, giving a more accurate picture of the area’s population and more equal representation in government.

This victory in Maine is particularly noteworthy as the state is one of two that allows people in prison to vote. People in Maine prisons register and vote at their pre-incarceration address. The reform signed last week aligns the state’s redistricting laws with these voting laws.

The new law also ensures that redistricting data reflects the community ties of incarcerated people. While someone may be incarcerated away from home on Census Day, they remain a member of their home communities. In fact, for most people who are away from home for long times, the Census Bureau recognizes the importance of family and community ties and counts them at home (e.g., truck drivers, boarding school students, members of Congress, military personnel) but fails to apply the same rules to incarcerated people. Maine has just ensured that incarcerated people and communities hit hardest by mass incarceration are treated the same as everyone else for redistricting purposes.

Map showing places that have addressed prison gerrymandering.

“Maine is the latest state to reject the flawed way that the Census Bureau counts incarcerated people,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “This measure is another piece of evidence of the growing consensus among the states on prison gerrymandering. One big question remains: will the Census Bureau listen to these states and change how it counts incarcerated people, or will it stubbornly dig in its heels and continue to force governments to modify redistricting data to make it usable?”

While it may seem like the 2030 Census is a long time from now, by passing this legislation this year, Maine will have enough time to collect the data necessary to ensure it can successfully count incarcerated people at their homes during its next redistricting period, a practice other states considering this reform should follow.

Roughly half the country now lives in a place that has addressed prison gerrymandering, with more than 200 local governments and 17 states tackling the issue. Progress on this issue has been so rapid that the National Conference of State Legislatures, a strictly bipartisan organization that assists state lawmakers on policy issues, recently called state efforts to end prison gerrymandering “the fastest-growing trend in redistricting.”

A new Census Bureau report could raise a common misconception about prison gerrymandering and money. We explain how ending the practice will have a big impact on political representation, but not funding.

by Aleks Kajstura, June 15, 2023

This week, the Census Bureau published an updated report estimating how much federal funding is distributed based on their population data. If you’re familiar with how the Census counts incarcerated people — where they are held on Census day rather than at home — you might assume that will impact where the funding goes. This is a common assumption — one that we’ve debunked several times before — but it doesn’t reflect the truth. With this report’s release, we thought it was worth reviewing the facts that show ending prison gerrymandering has little to no impact on the amount of federal dollars a community receives, but it can have a big impact on a community’s voice in government.

At the center of the misconception is that there is a set amount of dollars that a community receives for every person counted in the Census. It’s true that a lot of funding depends in some way on Census data; The Census Bureau’s report concludes that “as of fiscal year 2021, 353 federal assistance programs used Decennial Census Programs data in whole or in part to distribute more than $2.8 trillion in funds to states, communities, tribal governments, and other recipients. However, this funding isn’t a lump sum that can be converted to a dollar amount per head. As the Census Bureau explains, “this paper merely describes funding programs that use Decennial Census Programs data; it does not attempt to document how such programs do so or whether such data are critical to any particular funding determinations.”

The truth is that money is generally distributed based on complex formulas that strive to match funds to the needs. To the extent that these rely on population totals, it is just one of many components taken into consideration. For example, as you might expect, poverty measures play an important role in funding allocations targeted to fill the needs of impoverished communities. But the federal poverty data used in those formulas does not include incarcerated people.

The myth that funding is distributed as a set amount of money per person is mostly the result of well-intentioned over-generalizations and simplification in an effort to have everyone counted. Desperate not to lose any population in the decennial count, governments often resort to putting a price tag on each person’s failure to respond. For example, as officials in one Georgia community tried to ensure their residents were counted, the local paper made claims such as: “If only one person is counted in a house with four people, it will mean $69,000 less in local coffers over a decade.” It’s a statement that may motivate action, but comes at the expense of the truth.

Certainly, it is important that the Census counts everyone. Census populations determine how legislative districts are drawn and in general terms, play a major role in how federal funds are distributed. But where incarcerated people are counted has less impact on funding flows than people assume.

Ending prison gerrymandering will ensure fair representation that will align legislative priorities with the needs of actual constituents. This will have a direct impact on policy, but will not shift a set amount of money from a prison town to the communities hit hardest by mass incarceration.

Want to help spread the word, or just want a change of formatting?
Here is our fact sheet (including all the sources and explanation of the different Census “censuses” that are used in funding allocations.)

As the Census Bureau continues to count incarcerated people in the wrong place, states like Illinois that have ended prison gerrymandering prepare for the 2030 count

June 14, 2023

On June 9th, Illinois Governor J.B. Pritzker signed into law HB1496 strengthening the state’s 2021 law that ended prison gerrymandering. Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political representation than the communities that incarcerated people call home.

This new legislation creates clearer protocols for determining last-known addresses of those incarcerated in the state by ensuring that address information collected at the local level is relayed to the Department of Corrections and providing avenues for people currently in state custody to review which address the DOC has on file for them. The legislation also expands the types of addresses allowed, to include addresses collected for post-release programs. These enhancements will make it easier for Illinois to implement its anti-prison gerrymandering reforms after the 2030 Census.

The fact remains, though, that the Census Bureau is the organization best situated to address prison gerrymandering. By simply applying its “usual residence” rule to incarcerated people in the same way it applies to other people, it could address this problem nationwide, a move states have increasingly called on the Bureau to take.

However, in the event the Bureau doesn’t address this problem before the 2030 count, states can and should take action now, like Illinois did, to ensure that they not only pass laws to end prison gerrymandering, but also that they have data-collection protocols in place that allow them to more easily count incarcerated individuals in their home communities instead of a prison cell.

National Conference of State Legislatures report outlines experiences and recommendations from states that implemented reforms in the 2020 redistricting cycle.

by Aleks Kajstura, May 2, 2023

In a new report from the National Conference of State Legislatures (NCSL), state governments have a clear message for the Census Bureau: You created prison gerrymandering, you need to fix it.

What is the NCSL? And why did it do this report?

The National Conference of State Legislatures (NCSL) is a strictly bipartisan organization devoted to supporting state legislatures, fostering cooperation between states, and representing state legislatures where federal issues impinge on their function.

The National Conference of State Legislatures (NCSL) is a strictly bipartisan organization devoted to supporting state legislatures, fostering cooperation between states, and representing state legislatures where federal issues impinge on their function.

The report explains why the NCSL is uniquely suited to do this sort of independent analysis of an issue like prison gerrymandering and why the report’s recommendations are so important:

Redistricting breeds suspicion and uncertainty. That’s understandable when so many states’ maps are challenged in court. The nonpartisan legislative staff who make up the backbone of many states’ redistricting efforts, understandably, seek to avoid being subpoenaed and dragged into court whenever possible. So when a researcher asks them to go on the record about the details of their redistricting process, people are naturally nervous.

This is where NCSL comes in. Unique among national organizations, NCSL’s sterling reputation for nonpartisanship and its policy of confidentiality in communications with its members makes the conference the ideal organization to produce this report…This report relies foremost on notes from interviews with policy staff, and secondarily on both public and private documentation provided to NCSL by staff during the research process.

This report, made possible by NCSL’s trusted relationship with the states, enables policymakers to understand the challenges on the ground and relay requests for the Census Bureau to meet their needs better.

For its report, NCSL reached out to the states working to implement prison gerrymandering legislation and “interviewed 43 staffers or contractors who participated in the reallocation process; 32 of them worked with or for redistricting offices and 11 worked in state departments of corrections.” The resulting report was anonymized to encourage frank discussion of their experience implementing the prison gerrymandering reforms.

The report examines state implementation of prison gerrymandering reforms after the 2020 census. Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. When states use those Census counts to draw legislative districts, they unintentionally distort political representation by unfairly giving people who live closest to prisons a louder voice in government, to the detriment of everyone else. To fix this problem, more than a dozen states had to adjust Census redistricting data to count incarcerated people at home after the 2020 census.

Based on interviews of redistricting officials in the 13 states that addressed prison gerrymandering when drawing new state legislative lines after the 2020 census, the report gives insights into the challenges they faced in implementing these reforms and offers recommendations to overcome those obstacles. The report makes clear that state officials recognize this problem is important, worth fixing, and the Bureau should do the fixing.

This report is well-timed. Last week Rep. Deborah Ross of North Carolina, along with Rep. Mark Pocan of Wisconsin, Rep. Emanuel Cleaver of Missouri, and Rep. Emilia Strong Sykes of Ohio, introduced a bill in Congress to end prison gerrymandering nationwide and Montana joined the growing list of states that have permanently addressed this problem. With roughly half of U.S. residents now living in a city, county, or state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear.


Everyone agrees — Census Bureau shouldn’t leave this work to the states

No recommendation looms larger in the report than the first one, which calls for the Census Bureau to take on the task of reallocating incarcerated people back to their home communities, either automatically or at the request of states. This is a roundabout way of saying what we’ve long maintained: the most efficient and effective way to solve this problem is for the Census Bureau to change its policy to count incarcerated people at their true homes.

The Census Bureau is legally required to provide data that is fit for use by states for redistricting purposes. However, the broad agreement on this issue suggests the agency is not meeting this critical obligation.


On the biggest challenges, states’ hands are tied

As the report details the challenges states faced implementing prison gerrymandering reforms, a theme quickly emerges: The biggest challenges are ones the Census Bureau created or is the agency best positioned to solve.

Implementing prison gerrymandering reforms 101:

Passing reforms is the first — albeit incredibly important — step to end prison gerrymandering. Just as important is successful implementation.

Passing reforms is the first — albeit incredibly important — step to end prison gerrymandering. Just as important is successful implementation.

To count people at home for redistricting purposes, states need to adjust the data they receive from the Census Bureau. The Bureau publishes a set of population tables it calls PL 94-171; these contain basic population and demographic data for each of the roughly 8 million Census “blocks” (little geographic areas) in the country. State legislators, redistricting committees, or independent commissions (depending on the state) then string these blocks together to create districts, with the goal of each district containing a roughly equal population.

To end prison gerrymandering, states need to adjust the population counts in these blocks to reflect incarcerated people in their home districts. This population adjustment, or “reallocation” process, can be boiled down to a few steps:

  1. Taking the PL 94-171 data and subtracting the prisons,
  2. Taking home addresses from the Department of Corrections and mapping them, this is called “geocoding,”
  3. Adding those geocoded addresses into the PL 94-171 data, thus creating a new “reallocated” redistricting dataset.

This explanation is nearing oversimplification, and if you are unfamiliar with the process, I would highly recommend getting acquainted with the details by skimming through the 2010 redistricting process in New York and Maryland through this report.

Most issues in implementation arise in the middle step, geocoding the home addresses. These range from missing address data and technical software requirements to workflow issues. The NCSL report reviews the various approaches and recommendations for states implementing reform or considering enacting legislation to end prison gerrymandering in 2030. Nearly all of these can be solved with a bit of time and forethought.

1. Census and other federal agencies impede state efforts

The report shows that the Bureau not only forces states to do the heavy lifting of counting incarcerated people in their home district, it and other federal agencies often inject additional speedbumps into the process.

For example, the Census Bureau frequently failed to accurately count correctional facilities, counting many facilities in the wrong place, and it failed to count some altogether. The Bureau’s bumbling in this regard was so bad this decade that it created a dedicated operation to allow governments to review its work. While these errors were particularly egregious and numerous in the pandemic-era, 2020 Census, they exist to some extent in all decades. These issues, while theoretically surmountable, add unnecessary burden to states trying to create useful redistricting data out of the Census tabulations under a tight timeline.

Additionally, many states expressed frustration with the Bureau’s lackluster geocoding tools, which are supposed to help them perform this reallocation. According to the report, the Bureau’s tool was the only one that elicited staff concerns, noting, “of the seven states that told NCSL they attempted to use the bureau’s geocoder, only one reported no issues with its user interface or concerns with its accuracy.”

The Census Bureau wasn’t the only federal agency to make states’ jobs harder. The Bureau of Prions (BOP) refused to cooperate with states, denying their requests to share address information for their residents. The report notes, “Nine of the 13 states’ reallocation policies encompassed people incarcerated at federal prisons, yet none of those states was able to receive inmate data from the Bureau of Prisons. All nine states requested data multiple times through official and unofficial channels to no avail.” The Bureau of Prisons controls the address information for about 150,000 incarcerated people nationwide.

It is important to note that the Census Bureau is the only agency able to overcome BOP stonewalling. How? By counting incarcerated people in their home communities in the first place.

2. Extra steps and unnecessary delays

Redistricting deadlines are already tight. The report shows the Census Bureau makes them even tighter by forcing states to spend precious time adjusting data to address prison gerrymandering. States recognize this is important, which is why even the state with the shortest redistricting deadline, New Jersey, which has only 30 days after the Census publishes its data to complete its redistricting, considered it worthwhile to take the time to adjust the Census data to count people at home. And even states like Montana, which made the decision to address prison gerrymandering later, ended up with redistricting data that better reflected their residents and thus was more suitable for redistricting than what the state received from the Census Bureau.

However, time is a limited resource for states; when states have to fix Census data, they have less time to focus on their primary task of drawing legislative districts. If the Bureau counted incarcerated people at home, it wouldn’t force states to choose between redoing the Census’s work and devoting more time to actual redistricting.

During this redistricting cycle, the COVID-19 pandemic caused significant delays and added uncertainty to the process. Most notably, the Census Bureau delayed data publication, further squeezing these already tight timelines. While the pandemic is unlikely to be an issue in future redistricting cycles, this experience shows why, in an unpredictable process, when time is at a premium, the Bureau should not increase the workload of the states.

While states can mitigate delays by passing legislation early in the decade to allow for data collection and planning before redistricting is looming, none of that effort should be necessary — the Census Bureau is unfairly shifting the burden of counting incarcerated people at home to the states.

3. Data quality issues magnified for states

The Census Bureau has one huge advantage that states don’t during redistricting: it has decades of experience working with this data and a full decade to prepare and troubleshoot problems it encounters; meanwhile, states are usually working on a short timeframe, measured in weeks and months.

This means the Census Bureau has usually seen and solved many of the problems states most frequently encounter, even before the data is collected. However, instead of solving these problems once, and passing that solution on to the states, it forces each state to muddle through them and develop their own process for solving them.

For example, one frequent problem states encountered was that their Departments of Corrections (DOCs) often collected and recorded race and ethnicity data differently than the Census Bureau. This is not a problem unique to DOCs and the issue of prison gerrymandering, so the Bureau has encountered it before and has a way of addressing it. However, instead of providing that solution to the states, each state had to navigate this problem on its own, expending valuable time and resources.

Similarly, states took different approaches to handling unknown or unmappable addresses. In some states, this was driven by legislative language, but in others, the task of making the decision fell to the staff.

And there were some problems states were just unable to solve, no matter how hard they tried. For example, each state only had the address data for people it incarcerated. That means states could not count their residents who were incarcerated in other states. This kind of arbitrary jurisdictional roadblock would not be an issue for the Census Bureau.

Some of these issues could be solved with additional years of address gathering (on intake at the correctional facilities), and many of the staff’s concerns about vague legislative guidance can be solved by bringing some of the language from our model legislation into the state’s law.

But in the end, the Census Bureau is better situated to count incarcerated people at home. So why is it forcing states to jump through so many hoops?


Census Bureau needs to solve the problem it created

The sheer number of states that ended prison gerrymandering was one of the most significant positive developments of the 2020 redistricting cycle. But it wasn’t without its challenges. Unlike many redistricting challenges that states face, though, prison gerrymandering was not self-inflicted and instead was created by outdated Census Bureau policies. The Census Bureau must start being more responsive to state redistricting needs.

The number of states addressing this problem will almost certainly grow by 2030. This NCSL report is powerful evidence that it is time for the Census Bureau to listen to the states and finally count incarcerated people at home.

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