Incarcerated on Census Day: How even brief jail and prison stays can last a decade

Length-of-stay data from prisons and jails offers yet another reason why counting incarcerated people as correctional facility “residents” doesn’t make sense.

by Ginger Jackson-Gleich, June 2, 2021

Should the Census count boarding school students at their parents’ addresses or at their schools? Where should it count military personnel deployed overseas? To determine where to count people with atypical living situations, the Census Bureau relies on its “usual residence rule,” which instructs that people be counted where they “live and sleep most of the time.” However, application of the rule isn’t entirely consistent. While the Bureau treats boarding school students and deployed military members as residents of their home addresses (despite being away from those addresses for long periods of time), it counts incarcerated people away from their homes, as residents of the correctional facilities where they are detained. This discrepancy persists despite the fact that many incarcerated people are away from home for shorter periods than are boarding school students or deployed military personnel — and despite the fact that many people in jails and prisons do not actually live and sleep most of the time at the place where they happen to be detained on Census Day.¹

Three-quarters of people in jails are released within three days

Consider our nation’s jails, where approximately 30% of incarcerated people are held in the United States on any given day. The American Jail Association has reported that 75% of people entering U.S. jails are released within 72 hours. Likewise, in 2019, the average stay for someone in jail was 26 days. (Importantly, there is no national figure on the median time served in jails, but it is likely far shorter than 26 days, given that many people spend only hours or a few days in jail, and because averages can be heavily skewed by the small number of people who remain there for long periods.) This data makes clear the error in the Bureau’s thinking when it comes to tabulating people in jails: the vast majority of people who happen to be in a jail on Census Day actually “live and sleep most of the time” somewhere other than that jail.

Many people in prison stay less than a year, and those who stay longer move around

Next, look at state prisons, where more than half of all people incarcerated in the United States are held. Although people generally stay longer in prisons than in jails, a study of the people released from state prison in 2018 showed that 20% had served less than six months and therefore did not live and sleep in prison most of the time. In addition, 42% of people released from state prison that year served less than one year.

Even among people serving longer sentences–those who do eat and sleep in a prison most of the time–it is quite often the case that they move around frequently while incarcerated. The Bureau of Justice Statistics has reported that approximately three-quarters of incarcerated people serve time in more than one prison facility (including approximately 12% who serve time in five or more facilities) before release. Thus, even for those with longer sentences, it often makes little sense to count them as residents of the particular facility where they are detained on Census Day.

Importantly, the existence of life sentences does not justify the practice of counting incarcerated people as prison residents either. For one thing, it is relatively rare for people to go to prison and never return home. Around 14% of people in prison are serving life sentences (including those serving “virtual” life sentences of 50+ years),² including 3.6% serving life without any possibility of parole. In addition, even states like California, Delaware, and Nevada that have very high rates of life sentences among their incarcerated populations have made the choice to count incarcerated people (including those serving life sentences) in their home communities.

Inconsistencies across populations

Incarcerated people fall into an atypical category for Census purposes, but so do many other Americans. And inconsistencies in how the Census treats these various groups drive home why it makes no sense to count incarcerated people as permanent residents of prisons and jails. For example, snowbirds–people who travel seasonally between multiple residences–are counted wherever they determine they live and sleep most of the time, regardless of where they are on Census Day. As mentioned earlier, military service members who are deployed overseas (who are away for an average of nearly 8 months) are also counted at their home addresses. Consider the differences in how youth are counted: Boarding school students are counted at their home addresses, but children in juvenile correctional facilities are counted as residents of the places where they are detained (despite the fact that two-thirds of them stay for six months or less). As we have said before: incarcerated people are uniquely singled out to be counted in the wrong place.

As redistricting processes begin across the country, discussions about where to count incarcerated people are likely to arise in every state. When they do, we hope people will remember that there are many reasons to count incarcerated people at home: prison gerrymandering siphons political power from urban communities and communities of color, it dilutes local representation, and it creates an inaccurate picture of community populations generally. To top it off, many incarcerated people are actually away from their home addresses for shorter periods of time than other groups that are counted at home. It’s time to stop treating incarcerated people as residents of the particular facility where they are held on Census Day.

Connecticut Gov. Ned Lamont signs bill ending prison gerrymandering

Connecticut becomes the 11th state to end the practice of prison gerrymandering.

May 27, 2021

For Immediate Release – Yesterday, Connecticut Governor Ned Lamont signed a bill ensuring that people in state prisons will hereafter be counted as residents of their home addresses when new legislative districts are drawn. The new law makes Connecticut the eleventh state to end the practice known as prison gerrymandering, after Illinois passed its own bill earlier this year.

The national movement against prison gerrymandering began in 2001 when the founders of the Prison Policy Initiative discovered that the sheer size of the prison population was combining with an outdated Census Bureau rule to distort political representation in this country. With the victory in Connecticut, over 35% of US residents now live in a state, county, or municipality that has formally rejected prison-based gerrymandering.

Most people in prison come from districts other than those in which they are incarcerated, and return to those home districts after release. Incarcerated people typically have strong attachments to their home communities, but no attachment to the community surrounding the prison. However, the Census Bureau counts all incarcerated people as residents of their prison cells. As a result, when states use Census counts to draw legislative districts, they inappropriately enhance the representation of people living in districts containing prisons.

Prison gerrymandering has a particularly significant impact on communities of color. The majority-white residents of seven state House districts in Connecticut have received significantly more representation in the legislature because each of their districts included at least 1,000 incarcerated African Americans and Latinos from other parts of the state. Eighty-six percent of the state’s prison cells are located in disproportionately white House districts.

“All districts in Connecticut send people to prison, but only some districts contain prisons,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “Counting incarcerated people as residents of the prison gives extra political representation to those districts, and dilutes the votes of everyone who does not live next to the prison. This new law will make legislative districts fairer by requiring people in prison be counted as residents of their hometowns.”

In enacting this legislation, the state has now caught up to the redistricting practices of the towns of Enfield and Cheshire, which both have large prisons within their borders and already refused to use the prison populations when drawing their local town districts.

Connecticut’s new law is the result of years-long efforts by Senator Gary Winfield and advocates, including Common Cause Connecticut the NAACP of Connecticut, and the Yale Law Peter Gruber Rule of Law Clinic. The law will go into effect for this year’s redistricting process, bringing an immediate end to the prison-driven distortion of representation in Connecticut.

The upcoming redistricting cycle means the clock is ticking for other states to end prison gerrymandering through legislation this year. But every state can still take action to prevent prison-driven election distortion. Legislation is not the only way to end prison gerrymandering before new districts are drawn: State and local redistricting officials can also minimize the impact of the Census’ prison counts by using the “group quarters” table that will be published with the usual redistricting data. The Census Bureau is publishing the table to make it easier for states to identify correctional facilities in their redistricting data.

Connecticut’s new law applies only to redistricting and unfortunately carves out a small exception for people serving sentences of life without the possibility of parole, who account for roughly 0.5% of the prison population. The legislation will not affect federal or state funding distributions.

Connecticut legislature passes law ending prison gerrymandering; bill heads to Gov. Ned Lamont’s desk

by Aleks Kajstura, May 14, 2021

On Wednesday, the Connecticut General Assembly passed SB 753, a bill that will strengthen state democracy by requiring that incarcerated people be counted as residents of their hometowns, not their prison cells, at redistricting time. If Governor Ned Lamont signs the bill, it will make Connecticut the eleventh state to end the practice known as prison gerrymandering.

This victory is the result of years-long efforts by Senator Gary Winfield and advocates including Common Cause Connecticut, the NAACP of Connecticut, and the Yale Law Peter Gruber Rule of Law Clinic. The law will go into effect for this year’s redistricting process, bringing an immediate end to the prison-driven distortion of representation in Connecticut.

State legislatures, members of Congress, and national newspapers push for an end to prison gerrymandering in 2021

A New York Times editorial, a federal bill, and other encouraging updates from our fight to make sure incarcerated people are counted in the right place.

by Wanda Bertram, April 16, 2021

This week, the Editorial Board of The New York Times called on states and the federal government to end prison gerrymandering, the practice of drawing legislative districts around large prisons and counting the people inside as legitimate constituents. As the Editorial Board remarked, this practice

“makes no sense, because virtually everyone who goes to prison comes from somewhere else, and almost all will return there after being released. While they are behind bars, they can’t vote, nor do they have any attachment to the local community or its elected officials…The result is one of the more persistent and pernicious distortions in the redistricting process.”

The bad news is that with redistricting just around the corner, policymakers are running out of time to prevent another 10 years of prison-driven election distortion. The good news is that momentum is rapidly building to fix the problem in several local, state, and federal lawmaking bodies, as well as in the national media:

• Connecticut, Michigan, Rhode Island, and Missouri are all considering bills that would require state and local redistricting officials to count incarcerated people as residents of their home addresses.
• Federal bill H.R. 1, the “For the People Act,” contains clauses that would end prison gerrymandering nationally — forever — by requiring the Census Bureau to change how it counts incarcerated people. As the NYT editorial correctly notes, this is by far the most efficient solution to prison gerrymandering. However, even if H.R. 1 passes this year, it won’t fix the problem until the 2030 Census.
• A small storm of recent press coverage is bringing public attention to prison gerrymandering, including a powerful oped in The Boston Globe, a deep dive published in The New Republic, and a flurry of articles from Connecticut about its new bill.
• State and local governments are also considering solutions that don’t require legislation. Cities and counties can simply choose to exclude prison populations when they draw new legislative districts this year, a solution that hundreds of local governments have already chosen. Meanwhile, state redistricting officials can divide up their prison populations among multiple districts to ensure that no one district claims a disproportionate number of incarcerated people.

If you live in a state that still hasn’t taken action, you may wonder what the options are for ending prison gerrymandering where you live this year. Again, there is good news and bad news. Most states have run out of time to introduce new bills this year that would take effect before the 2021 redistricting process begins. But all states still have time to limit prison gerrymandering this year through non-legislative means (the solution described in the fourth bullet above). And the stakes have never been higher. In the words of the Times Editorial Board: “A healthy representative democracy needs an accurate picture of who lives where in order to allocate the proper number of lawmakers to represent their interests.”

Learn more about what your state is doing to end prison gerrymandering at https://www.prisonersofthecensus.org/action.html.

New Boston Globe oped explains how and why states must end prison gerrymandering — now

Advocates will find Abdallah Fayyad’s new Boston Globe column a useful article to distribute to policymakers, as a concise explainer about why ending prison gerrymandering is important this year.

by Wanda Bertram, March 25, 2021

Prison gerrymandering is poised to continue in most states for another 10 years, unless states act immediately to fix the problem before the fast-approaching redistricting process. Fortunately, even in the many states that have run out of time to pass new laws before redistricting starts, there are still two solutions left for local and state districts.

Boston Globe opinion columnist Abdallah Fayyad published a highly-readable oped this month about prison gerrymandering, in which he explains the problem and the urgently-needed solution for local governments: “Remove prisons from redistricting data prior to creating new legislative maps at the local level.”

Meanwhile, state legislators “should ensure that prisons don’t meaningfully distort where [state] district lines are drawn.” This requires map drafters to avoid grouping prisons together into single districts and making sure that districts that do contain prisons have enough actual local residents to meet population requirements.

Fayyad’s oped targets policymakers in Massachusetts, but the solution he explains could work in virtually any state. Most states contain cities and counties whose governments have been wildly distorted by prison gerrymandering, and the Census Bureau is making it easier than ever for redistricting officials to fix the problem themselves. (We’ve previously explained the solution Fayyad offers in more detail.)

Because the oped ran in the widely-read and respected Boston Globe, advocates in other states may find this a very useful piece to distribute as a concise explainer about ending prison gerrymandering this year.

Fayyad also does an excellent job explaining the injustice of prison gerrymandering. As he puts it:

“Representatives from [prison] districts feel compelled to cater to the needs of only a minority of their constituents if they wish to be re-elected…This is not because these representatives are inherently sinister actors — though not responding to the needs of incarcerated constituents is a failure of leadership and the duty to serve a district in its entirety — but because the system encourages elected officials to ignore their prison populations.”

It’s important to end prison gerrymandering, as Fayyad explains, in order to move away from a system in which people in prison are invisible and ignored, and towards one in which they have genuine representation in houses of government.

Read the full Boston Globe oped here: https://www.prisonpolicy.org/scans/BostonGlobe_Fayyad_prisongerrymandering_Mar2021.pdf

Read about our ongoing advocacy to end prison gerrymandering in 2021 here: https://www.prisonersofthecensus.org/news/2020/12/18/building-momentum/

Illinois Governor J.B. Pritzker signs law ending prison gerrymandering

February 25, 2021

For immediate release — On Tuesday, Illinois Governor J.B. Pritzker signed an omnibus criminal justice package that (among several victories) makes Illinois the tenth state to end prison gerrymandering. HB3653 ensures that, beginning in 2030, people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn.

The Prison Policy Initiative, which has been leading the national fight to end prison gerrymandering for almost 20 years, notes the significance of this particular victory. “One in three U.S. residents now lives in a place that has ended prison gerrymandering,” said Legal Director Aleks Kajstura.

But this important win also falls far short of what the Prison Policy Initiative and other advocates hoped for. The part of HB3653 ending prison gerrymandering was singled out in a last-minute change delaying implementation until 2030, rather than ensuring that changes go into effect in the current redistricting cycle. “The state’s delay means another decade of using redistricting data that counts incarcerated people in the wrong place,” said Aleks Kajstura. “While the state waits another six months for the Census’ redistricting data, it could be using that time to count people at home.”

Illinois law states that going to prison does not change someone’s official residence. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Illinois uses Census counts to draw legislative districts, it unintentionally enhances the representation of people living in districts containing prisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the representation of everyone who does not live next to the state’s largest prison, and prevents the state from fulfilling the constitutional requirement of equal representation. Indeed, 22 counties and cities in Illinois that have large correctional facilities already adjust their own redistricting data to ensure equal representation on city councils and county commissions.

While the upcoming redistricting cycle means that the clock is ticking for states that want to end prison gerrymandering, every state still has an opportunity to limit the impact of the distortion. Legislation is not the only way to end prison gerrymandering before new districts are drawn: State and local redistricting officials can also minimize the impact of the Census’ prison counts by using “group quarters” table that will be published with the usual redistricting data. The Census Bureau is publishing the table to make it easier for states to identify correctional facilities in their redistricting data. “More states need to follow Illinois’s example in passing swift reform, but they have to make sure that reforms go into effect immediately or they will face 10 more years of prison-driven democracy distortion,” said Kajstura.

Illinois’s new law applies only to redistricting, and will not affect federal or state funding distributions.

Illinois legislature passes bill ending prison gerrymandering

Illinois is poised to become the 10th state to end prison gerrymandering.

by Aleks Kajstura, January 13, 2021

Illinois’ HB 3653, a major criminal justice reform package, contains provisions ending prison gerrymandering for state legislative districts. The final language passed both the Senate and House today.

If signed by Governor Pritzker, it will make Illinois the 10th state to end prison gerrymandering. This reform represents a culmination of a decade-long effort, including CHANGE Illinois and United Congress of Community and Religious Organizations tirelessly pushing for reform.

California’s Redistricting Commission votes to adopt prison gerrymandering reform

Unanimous decision follows state legislature’s recommendation to count incarcerated people at home

by Ginger Jackson-Gleich, January 12, 2021

After the 2010 redistricting cycle, the California legislature passed a collection of bills—AB 420 (2011), AB 1986 (2012), AB 2172 (2018), and AB 849 (2019)—that sought to end prison gerrymandering at all levels of government.

At the local level, that legislation requires city and county governments to adjust redistricting data by counting incarcerated people in their home communities, rather than at the correctional facilities where they are detained. At the state level, the legislation recommends that the Citizens Redistricting Commission make that same adjustment.

This morning, the Commission convened to discuss and vote on that recommendation. At the close of the meeting, the Commission adopted the legislature’s recommendation through a unanimous, bipartisan vote of all those present.

The vote followed presentations by our own Aleks Kajstura and by Karin Mac Donald, Director of California’s Statewide Database and the Election Administration Research Center at UC Berkeley, as well as the submission of a letter from Assemblymember Shirley Weber, Ph.D., author of AB 2172 and newly designated Secretary of State for California.

Since you asked: do opponents of prison gerrymandering want voter-only districting?

No. We oppose voter-only districting — even our recommendation that incarcerated people be excluded in some contexts lends no support to the practice of voter-only districting.

by Ginger Jackson-Gleich, December 28, 2020

Who should be counted for redistricting purposes? Since the 2010 redistricting cycle, numerous events — from the Supreme Court’s decision in Evenwel v. Abbott to President Trump’s efforts to inquire into citizenship status in the 2020 Census — have drawn attention to this important question. For people interested in our work, an additional query often follows: how exactly should disenfranchised incarcerated people be counted toward district populations?

The fact that questions persist about our recommendations for counting incarcerated people is not surprising: journalists have reported our position inaccurately; advocates for voter-only districting have tried to twist and appropriate our words; and the exclusion of incarcerated people (who generally cannot vote) is one of the solutions to prison gerrymandering that we promote in specific, limited contexts. As a result, some people assume that opponents of prison gerrymandering support voter-only districting.

In advance of the upcoming redistricting cycle, we’d like to make our position on this issue clear: we believe that all persons, whether or not they can vote, are entitled to equal representation and that everyone should be counted for purposes of redistricting. The key concern with prison gerrymandering is not whether incarcerated people should count, but where they should count. Accordingly, districting based on the eligible-voter population is not an approach that we support.

As noted above, we suspect that some of the confusion surrounding this topic arises from our recommendation that incarcerated people be excluded from redistricting data when cities or counties draw local legislative districts around correctional facilities.

To understand why such exclusion does not amount to an endorsement of voter-only districting, it is necessary to see that prison gerrymandering causes two distinct problems: it undermines equality of representation between coequal legislative districts and it siphons political power from incarcerated people’s home communities. Both issues arise from the way the Census tabulates incarcerated populations: it allocates people to their temporary prison addresses, rather than counting them at home (despite the fact that they remain legal residents of their home addresses while incarcerated).

Just like state governments, local jurisdictions — such as cities and counties — have districts that are required to contain equal populations in order to ensure equal representation by local elected officials.

However, as one federal judge has beautifully explained, city councilors, county commissioners, and other local elected officials “can’t make decisions that meaningfully affect” the people incarcerated within their districts, nor can the governing bodies to which those representatives belong do anything for such populations, whose lives are generally governed by state (or even federal) authorities. In other words, unlike other non-voter populations (like children or permanent residents), there is no “representational nexus” between local elected officials and the people detained within their districts. As a result, excluding correctional facilities when local district lines are drawn ensures that districts will have equal numbers of actual residents — and therefore that residents will have truly equal representation.

Unfortunately, local jurisdictions cannot solve the problem of prison gerrymandering in its entirety. While they can avoid creating city or county legislative districts with unequal representation, they cannot — on their own — stop the transfer of political power from people’s home communities. This is because local jurisdictions can refuse to pad their own districts with prisons (by excluding correctional populations prior to drawing district lines), but they cannot restore incarcerated people to addresses outside of their own boundaries. Accordingly, local jurisdictions cannot singlehandedly end the siphoning of political power from incarcerated people’s home communities.

Importantly, the state-level solution is different from the local one; at the state level, exclusion is neither necessary nor beneficial because states can count incarcerated people at their home addresses statewide and thereby solve both parts of the prison gerrymandering problem. Thus, for local jurisdictions, we recommend excluding incarcerated populations prior to redistricting (a partial solution being better than no solution), while our ultimate hope is that states and the Census Bureau will implement the solutions necessary to solve the problem completely.

For all of these reasons, we continue to advocate that using total-population baselines (not eligible-voter populations) is the best method for redistricting, and that incarcerated people should be counted at their home addresses. This total-population approach (sometimes described as the pursuit of “representational equality”) ensures both that elected officials represent the same number of constituents (including those — such as children, non-citizens, and incarcerated people — who cannot vote), and also that officials have a meaningful representational connection to the people they purport to represent. By contrast, efforts to ensure “voter” or “electoral equality” limit representation to only those individuals eligible to cast ballots.

As part of our collection of updated resources for advocates, we have added a fact sheet that addresses local redistricting (and the prison gerrymandering solutions available to local governments). Readers may also wish to explore our other resources for the 2020 redistricting cycle, including a roundup of legislative solutions, as well as an explanation of why prison gerrymandering does not impact federal or state funding allocations.

Building momentum against prison gerrymandering

Diverse support for ending prison gerrymandering builds momentum for action nationwide.

by Aleks Kajstura, December 18, 2020

Prison gerrymandering can feel like a complex, political quirk. Talking about Census Bureau policy and how the Bureau interprets its own sometimes-arcane “residence rules” can feel like getting deep in the weeds of policy. But prison gerrymandering is not a fringe issue. It has real-world implications for representation and public policies — and there are proven solutions. Since the Prison Policy Initiative and others have been working to solve this problem, we have seen growing public support and reform legislation passed around the country.

The problems stem from the way the Census Bureau conducts its counts. When counting the population every ten years, the Bureau tabulates incarcerated people as if they were residents of the locations where they are confined, even though they remain legal residents of their homes. When the resulting data is then used to draw legislative districts, all of a state’s incarcerated persons are credited to a small number of districts that contain large prisons. This has the effect of enhancing the representation of those districts and diluting representation of everyone else in the state, distorting policy decisions statewide. And since incarcerated populations are disproportionately Black and Latino, minority voting strength is diluted in the process. (Although this affects representation, it fortunately does not have major funding implications, for various reasons.)

Although prison gerrymandering remains a serious issue in most parts of the United States, there is a growing movement to solve it, and significant progress toward reform has been made at the Census Bureau and at all levels of government across the country. States have the power to use correctional data to adjust Census population counts when drawing districts. Since 2010, nine states — Maryland, New York, Delaware, California, Washington, Nevada, New Jersey, Colorado, and Virginia — have passed legislation to do so, ensuring that districts are drawn with data that counts incarcerated people at home. And more than 200 counties and municipalities independently adjust their redistricting data to avoid prison gerrymandering.

All in all, over 30% of US residents now live in a state, county, or municipality that has formally rejected prison gerrymandering:

Additionally, where states have been unable to implement the most common solutions to prison gerrymandering, they have embraced other options available to them. For example, Massachusetts has not passed legislation, but it found another way to minimize the impact of prison gerrymandering when drawing districts following the 2010 Census, by specifically considering prison populations to ensure that the state would not accidentally (or purposely) concentrate prison populations within a small number of districts. The redistricting committee’s final report on their process devoted significant space to the prison gerrymandering problem and recommended that the Census Bureau create a national solution. The state legislature then doubled down on that recommendation and passed a joint resolution that officially calls on the Census Bureau to count incarcerated people at home. Notably, this solution is still available to any state that cannot pass legislation to count incarcerated people at home in time for the 2020 redistricting cycle.

These actions reflect strong public support for solving prison gerrymandering — and a push for the Census Bureau to change the way it counts in the first place. When the Census Bureau asked for public comment on how incarcerated people should be counted in 2015, over 99% of the 77,863 comments urged the Bureau to count incarcerated persons at their home address. And when the Bureau asked again a year later, almost 100,000 people voiced support for the change, including representatives from civil rights organizations, elected officials at all levels of government, former Directors of the Census Bureau, and citizens from across the country. The reform movement has also drawn editorial support from publications like the New York Times and the Philadelphia Inquirer.

In addition to legislative efforts and public comments, organizations and legislative bodies have shown opposition to the Census Bureau’s prison count and prison gerrymandering, by issuing formal resolutions and recommendations.

As a result of state and local governments’ push to avoid prison gerrymandering, as well as support from advocates and the public, the Census Bureau has recognized that the redistricting data it has historically provided does not meet the needs of those aiming to draw equal districts. Although the 2020 Census still counted incarcerated people as if they were residents of correctional facilities, the Bureau will be publishing prison population counts as part of each state’s redistricting data, making it easier for states and local governments to avoid prison gerrymandering.

As a record number of states and municipalities are poised to tackle prison gerrymandering during the upcoming redistricting cycle, now is the time to join the movement for change.