Advocates to Census Bureau: End prison gerrymandering in 2030

Roughly half the country now lives in a place that has taken action to address prison gerrymandering

by Aleks Kajstura and Mike Wessler, November 21, 2022

Last week, the Census Bureau wrapped up its first public comment period on ways it can improve the next Census. It was our first opportunity of the decade to make the case that the Bureau should finally end prison gerrymandering nationwide in 2030. Prison gerrymandering is a problem created by the Bureau counting incarcerated people as residents of prison cells rather than their home communities. Then, when states use those Census counts to draw legislative districts, they unfairly give people who live closest to prisons a louder voice in government, to the detriment of everyone else. Our official comments gave the Bureau plenty to reconsider.

In two letters — one cosigned by 35 other criminal justice and voting rights organizations and one we submitted on our own — we made comprehensive arguments why the Bureau should change its process, focusing particularly on four key areas:

1. State and local governments are rejecting the Bureau’s flawed way of counting incarcerated people

During the 2010 redistricting cycle, only two states adjusted their redistricting data to count incarcerated people at home. In 2020, 13 states¹ counted incarcerated people at home. And four additional states took other steps to reject prison gerrymandering in redistricting.² And hundreds of local jurisdictions have made changes, in the absence of state-led solutions, to address this problem.³

In total, roughly half of the US population now lives in a place that has taken action to mitigate the harms of prison gerrymandering. This number will almost certainly grow by 2030. Each of these places has had to spend additional time and money to fix this problem that the Census Bureau created and could easily resolve.

The emerging consensus on this issue is clear and serves as powerful evidence that it is time for the Census Bureau to count incarcerated people at home so the data it provides state and local governments meets their needs.

2. The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration

The Census Bureau relies on its “residence rule,” which says that people should be counted where they eat and sleep most of the time, to justify counting incarcerated people as residents of prison cells. However, the Bureau’s interpretation of this rule has evolved over the decades to keep pace with a changing society. But the way they count incarcerated people is still stuck in the 1700s.

On any given day, 30% of incarcerated people are held in jail. The American Jail Association has reported that 75% of people entering U.S. jails are released within 72 hours. The average stay for someone in jail is 26 days. (Importantly, the median time served in jails is likely far shorter than 26 days, though no precise figures exist.)⁴ As a result, even a brief jail stay of just a few days had repercussions that were felt for a decade.

Prisons tend to hold people serving longer sentences than those in jails. Regardless of sentence length, though, people in prisons don’t reside (eat and sleep most of the time) at the particular correctional facility they happen to be at on Census Day. People counted at a state or federal prison on Census Day likely have not been at that facility very long, and will likely to leave it soon:

• 75% of people serve time in more than one prison facility.⁵
• 12% of people serve time in at least five facilities before returning home.⁶
• Most people incarcerated in New York State have only been at their current prison for seven months.⁷ (Other states report similar figures.⁸)

3. Communities of color are disproportionately harmed by prison gerrymandering

The Bureau’s decision to count incarcerated people as residents of a prison disproportionately harms communities that are already hit hardest by incarceration and marginalized because of their race, gender, sexual orientation, class, and other defining characteristics. The Bureau’s own data shows incarceration rates are not even across all populations: Black people, Native American people, Hispanic/Latinx people, and people of two or more races are disproportionately incarcerated.⁹

The Census Bureau already has a stubbornly persistent problem of undercounting these disadvantaged communities.¹⁰ By counting incarcerated people from these communities as residents of prison cells, rather than their homes, the Bureau exacerbates this existing problem by further undercounting these areas.

4. Incarcerated people are treated differently than others in similar situations

Counting incarcerated people at home would align residence rules with how the Census Bureau counts others in similar transitory situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility.

The most glaring example of this double-standard involves kids who are away from home on Census Day: Kids at boarding schools are counted at their parents’ addresses, while kids who have even a short stay at a juvenile correctional facility are counted at the location of the facility.

The Census Bureau uses the length of time someone spends in a single location as a starting point for applying the residence rule, but it often takes other factors into account. For most people who are away for long times, the Bureau recognizes the importance of family and community ties when it counts them at home (e.g., truck drivers, boarding school students, Congress, military personnel) but fails to apply the same thinking to incarcerated people.

What’s next?

Once it reviews them, the Bureau will eventually publish all submissions it received during this public comment period. However we don’t know exactly when that will be. While we wait, we’re collecting comments from other organizations on our website to make them available to stakeholders and decisionmakers earlier. If your organization submitted a comment calling for the Bureau to end prison gerrymandering, send it to us and we’ll add it to the collection for 2022.

As we work to end prison gerrymandering nationwide, state governments should continue to move forward with their efforts to end the practice, as well. For most, this means collecting data on where people in their prisons call home or passing legislation to require state and local redistricting bodies to count incarcerated people at home when they draw new district lines. Taking these steps will put additional pressure on the Bureau to change its policies (and, in the event the Bureau doesn’t make this change, ensure these state and local governments are ready to fix this problem on their own).

This public comment period is the first step in what will be a lengthy process, but we’re in it for the long haul, and momentum is on our side.

Our first chance to end prison gerrymandering in the 2030 Census

The 2030 Census should count incarcerated people at home; tell them to start that change now.

by Aleks Kajstura, August 31, 2022

The next Census is still eight years away but the work to prepare for it has already begun, and so have our efforts to convince the Census Bureau to finally count incarcerated people as residents of their homes instead of prison cells. Earlier this month, the Bureau asked for public comment on areas it can improve upon in the 2030 Census. This is our first chance to ask the Bureau to build on its progress during the 2020 Census, and finally end this problem nationwide. And there are good reasons for it to do so. Prison gerrymandering is a relatively new problem, created by exploding prison populations and an outdated way that the Census Bureau counts incarcerated people, and it creates significant challenges for the rapidly growing list of state and local governments working to fix this problem.

The problem

The Bureau’s practice of counting incarcerated people as residents of a prison, rather than at their homes shifts political representation to people who live near correctional facilities, at the expense of residents who live further away. (Importantly, this does not impact funding distribution.) In doing this, the Census Bureau gives people who live close to prisons a louder voice in government and the decisions made in their state and community.

A bit of history

We’re often asked, “If the Census Bureau has counted incarcerated people this way since the country was founded, why change now?” The simple answer is: the nation’s 40-year failed experiment with mass incarceration changed everything.

The prison boom began in the 1970s, but its impact on the 1980 Census was modest from a national viewpoint. In fact, the Bureau didn’t even mention incarcerated household members on the census form until the 1990 Census. But by 2000, the incarceration rate was more than four times higher than two decades earlier, and this problem was unavoidable. State and local officials and advocates began to notice that areas containing prisons began to “grow”, and so did their influence in government.

The Bureau’s application of its “residence rule” has failed to keep up with an evolving country and its needs

The Census Bureau often cites its interpretation of its “residence rule” — which says people should be counted where they eat and sleep most of the time — to justify counting incarcerated people in prison cells. However, its interpretation has evolved over the decades to keep pace with a changing society, however the way they count incarcerated people is still stuck in the 1700s.

Common assumptions about incarceration haven’t caught up with modern realities for incarcerated people. While the Census Bureau continues to count incarcerated people at their correctional facility for purposes of the census, the fact is, between short sentences and frequent transfers between facilities, many people in prison and jail do not actually live and sleep most of the time at the place they are incarcerated on Census day.

The way the Census counts incarcerated people is also out of step with how it applies the residence rule to other people in transitory living situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility. Kids who live at boarding school are counted at their parents’ address while kids who have a short stay at a juvenile correctional facility are counted at the location of the facility.

The amount of time spent in a single location is a starting point, not an end-all-be-all for how the Census Bureau applies its residence rules. Most people who are away from home on Census day — even if they’re gone for a significant amount of time — are counted at home. The Bureau does this because it recognizes a person’s ties to their home and community are what really define a residence. It relies on family and community ties to count truck drivers, boarding school students, Congressional members, and military personnel at home. But the Census Bureau fails to apply the same rules to incarcerated people.

The Bureau is failing to keep up with evolving redistricting data needs

State and local governments — the most important redistricting data users — recognize how outdated the Census Bureau’s methodology is. During the 2000 redistricting cycle, many counties and municipalities that contained large prisons adjusted the data they received from the Census Bureau in order to avoid prison gerrymandering when drawing district lines. During the 2010 redistricting cycle, two states and over 200 local governments had taken action to fix this problem; and by the 2020 cycle, an additional 11 states had joined them. Altogether, nearly half of the country now lives in a city, county, or state that has taken on the burden of correcting the data it received from the Census to use in redistricting.

The Census Bureau has a duty to solve this problem. It is required to provide data that is fit for use in redistricting, a standard it is not meeting. While many states counties, and cities have taken it upon themselves to fix this problem, the Census Bureau, is the only agency that can provide a complete solution, and can do so far more efficiently than state or local governments, which often run up against roadblocks that the Census Bureau would not. For example, counting people incarcerated across state or county lines, matching Census race and ethnicity categories, and counting people in Bureau of Prisons facilities — an agency that has refused to cooperate with states. Additionally, there are states like Massachusetts where the state constitution prohibits unilateral action, Massachusetts explained in their 2014 resolution urging the Census Bureau to change the way it counts incarcerated people. States have shown incarcerated people can be counted at home, but the Census needs to take this proof of concept and apply it to its own count.

Looking to 2030

As the Census Bureau begins to plan for 2030, there are good reasons for it to change how it counts incarcerated people. By counting people as residents of a prison cell, instead of their home communities, prison gerrymandering reduces the say that most communities — particularly those hit hardest by mass incarceration — have in their government. The Bureau’s interpretation of its residence rules is out of date and treats incarcerated people differently than many other similarly situated groups. And finally, the Bureau is falling behind the emerging consensus on this issue; forcing hundreds of local governments and over a dozen states to take ad hoc steps to correct the redistricting data on their own. It is time for the Census Bureau finally count incarcerated people at home in the 2030 Census.

Now is our first opportunity to make our voice heard. We hope you’ll consider doing so.

How to submit your comments to the Census Bureau

This public comment period is the first chance members of the public have to call for an end to prison gerrymandering nationwide in the 2030 Census. As the Census Bureau explains:

As part of the planning efforts, the public is invited to share feedback on how the Census Bureau can improve the public’s experience during the 2030 Census. With this input, the Census Bureau aims to better reach and count historically undercounted people, overcome challenges and encourage everyone to respond to the 2030 Census. Public input is needed now so it can inform the Census Bureau’s decisions on the initial operational design, along with the findings of dozens of research projects underway.

You can send your comments in two ways:

• Email the Census Bureau at DCMD.2030.Research@census.gov. Please include “FRN Response” in the subject line.
• Go online to the online submission form. Then, click the green button “Submit a Formal Comment”.

Comments are Due November 15th.
Note: The Census Bureau asks that you clearly identify your comment with one of their provided topic choices. I suggest using “Reaching and motivating everyone” for comments on ending prison gerrymandering, but if your comment delves into the weeds of technical aspects of the count, you might also consider “New data sources”.

What’s coming up next?

Right now, the Census Bureau is in the early stages of planning for the 2030 Census. We expect the Bureau to focus deeper on issues related to prison gerrymandering in the next few years, but the problem cannot be ignored in the meantime.

Before this November 15 deadline, the Prison Policy Initiative will publish additional resources like this fact sheet; and we encourage you to check out our pathfinder guide to resources available on our site. And in the year ahead you can expect us to publish other fact sheets and explainers to prepare for the next stages of this effort.

Washington ends prison gerrymandering in local government districts

New law builds on the previous measure that ended the practice in state legislative and congressional redistricting.

by Mike Wessler, March 16, 2022

Last week, Washington Gov. Jay Inslee signed a bill that strengthens the state’s anti-prison gerrymandering law by making it apply to city, county, and other local governments when they redistrict. Washington was the fifth state to end the practice in state legislative and congressional redistricting. By extending this law to local governments, Washington is now among the gold standard states that have ended prison gerrymandering.

Prison gerrymandering occurs because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. Most people in prison don’t come from communities where they are incarcerated and return to their home community after release. Because of their small size, local governments feel some of the most dramatic impacts of prison gerrymandering. When a city or county includes a prison’s population when redistricting, it gives residents who live closest to the prison significantly more political clout and diminishes the residents’ voices in other districts.

Under the law, when new census population data is released every ten years, the state redistricting commission will adjust the data to count incarcerated people in their home communities rather than where they are incarcerated. Local governments will then use this adjusted data to draw their new district lines rather than the data provided directly by the Census Bureau. The legislation applies only to redistricting and will not affect federal or state funding distributions.

While the law will not impact the current redistricting process, cities and counties that have not yet drawn new district lines can take steps on their own to draw more fair districts that do not use incarcerated people to pad populations. After the 2010 census, at least three Washington counties took part in prison gerrymandering.

Prison gerrymandering is a problem that can best be solved if the Census Bureau changed its policy to count incarcerated people as residents of their home communities rather than a prison cell. Roughly half of all residents of the United States now live in a city, county, or state that has addressed prison gerrymandering. The actions by Washington to strengthen its anti-prison gerrymandering laws add to the growing consensus that the Census Bureau should end this unjust practice once and for all.

Rhode Island becomes latest state to address prison gerrymandering

Gov. Dan McKee signed into law new legislative districts that count many incarcerated people in their home districts.

February 23, 2022

Another state has moved to address prison gerrymandering. Last week, Rhode Island Governor Dan McKee signed into law new legislative and congressional districts that change how the state counts incarcerated people. Rhode Island is the second state whose redistricting commission has taken the initiative to address prison gerrymandering (after Pennsylvania last year). Eleven other states have also ended the practice through legislation. All told, roughly half of all U.S. residents now live in a state, county, or municipality that has rejected prison gerrymandering.

Prison gerrymandering is a problem created because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. 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. As a result, when states use Census counts to draw legislative districts, they inappropriately enhance the representation of people living in districts containing prisons.

However, unlike other states that have taken action, Rhode Island did not completely end prison gerrymandering. Instead of counting all incarcerated people at home when drawing new districts, the redistricting commission counted only people who, on Census Day (April 1, 2020), were either not yet sentenced or had less than two years remaining on their sentence. As a result, the state’s new legislative maps count only 44% of incarcerated people in their correct districts. (The change will not affect federal or state funding distributions.)

“These new districts are an important step in the fight to end prison gerrymandering in Rhode Island, but the work is not over. Lawmakers should finish the job of ending this injustice by passing legislation that will ensure the state counts all incarcerated people in their home districts when new districts are drawn in ten years,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “Rhode Island’s actions are yet another reason for the Census Bureau to join the growing consensus on the issue and count incarcerated people as residents of their homes, not their prison cells.”

Prison gerrymandering has a particularly significant impact on communities of color in Rhode Island, where black people are incarcerated at a rate nine times higher than non-Hispanic whites, and Latinos are incarcerated at a rate three times higher than non-Hispanic whites.

The national movement to end 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. Since then, more than a dozen states and over 200 local governments have taken action to address this problem.

Rhode Island takes a (small) step toward ending prison gerrymandering

Decision by redistricting commission means 44% of people incarcerated by the state will be counted in the right district

by Mike Wessler, January 10, 2022

It is almost time to add Rhode Island to the growing list of states that have taken steps to end prison gerrymandering. Last week, the state’s redistricting commission voted to count some of the people incarcerated at the Adult Correctional Institute (ACI) in their home districts instead, when drawing state legislative and congressional districts. The bipartisan vote of 15-1 showed overwhelming support for what we hope is a first step toward ending prison gerrymandering in Rhode Island.

Although a small step, it is undoubtedly a step in the right direction. Over the last two decades, advocates on the ground have led the charge to end prison gerrymandering, and this change represents the first concrete step taken by the state to draw districts that accurately and fairly count incarcerated people. That is something worth celebrating.

However, the work to end prison gerrymandering in Rhode Island is far from over. Rather than reallocating all people incarcerated at ACI back to their home communities, the state will only reallocate people who were either not yet sentenced on Census Day or people expected to be released by April 1, 2022. That means only 44% of people incarcerated at ACI will be counted in their home districts. It is an unfortunate and arbitrary choice to count such a small portion of people in their home community. The choice is even more frustrating when you remember state law says a person doesn’t stop being a resident of their home district when they are incarcerated. That is true whether someone is incarcerated for a day or a lifetime.

It’s imperfect progress, so what’s next?

The first step is finalizing the new maps in the state. In the coming weeks, the commission will produce its proposals. Then, this spring, the legislature will give the maps final consideration. After that, legislators should look to build upon and solidify the progress that has been made by passing legislation that ensures that all incarcerated people in the state are counted in their home communities for the purposes of drawing district lines in the coming decades.

Ultimately, though, the piecemeal actions taken by the Rhode Island Redistricting Commission are further evidence that the best way to end prison gerrymandering is for the Census Bureau to change the way it counts incarcerated people to end prison gerrymandering nationwide. Now that yet another state has joined the emerging consensus on this issue, there is even more reason for the Bureau to count incarcerated people at home in the first place.

For the first time ever, Tennessee counties can avoid prison gerrymandering

A change to state law frees counties to draw districts that truly represent the residents of their communities.

by Mike Wessler, November 4, 2021

For county governments, the practice of redrawing district lines every ten years is usually a fairly routine process. You get the new data, examine it, and make minor tweaks to districts based on where your population grew and where it shrank. This year, though, thanks to a change in state law, counties in Tennessee have, for the first time, an opportunity to make their districts fairer and more representative by ending prison gerrymandering.

Most states leave it up to local governments to decide whether to include prison populations when drawing their district lines. However, Tennessee was one of just a handful of states that previously explicitly prohibited counties from cutting the prisons out of their local data when they redistrict. This prohibition, combined with a prison-building boom in rural areas, resulted in huge distortions created by prison gerrymandering.

This electoral inequality was particularly acute in Trousdale County, a community with fewer than 8,000 residents located northeast of Nashville. When it looked to redraw its districts after the last census, it discovered that the recently built prison, which locked up more than 2,500 people from all corners of the state, had been included in the census data for the county. This data made it impossible to draw fair and equal districts that complied with the requirements of its county charter. And because state law at that time required them to include the population of people who are incarcerated when they draw district lines, the community was stuck.

State Senator Ferrell Hailie (R) told the Hartville Vidette, “The situation (Trousdale) has, with a small population and a prison with a large population, really created a problem.”

Trousdale looked to state lawmakers for help. Sen. Hailie brought forward legislation to amend state law to give counties the option to exclude people who are incarcerated when drawing district lines. It freed them to end prison gerrymandering for the first time. In 2016, the measure received wide bipartisan support, passed unanimously in the Senate, and was signed into law.

This new law doesn’t just apply to Trousdale. Upon its passage, Sen. Hailie told the Hartville Vidette, “This will help other counties as well.”

Many counties in Tennessee can benefit from the new law’s flexibility. After the 2010 census, Tennessee was home to some of the districts most severely distorted by prison gerrymandering, giving residents who live in the same district as a prison significantly more political representation than their neighbors. For example, a prison accounts for 87% of the population of a district in Lake County. That means 13 actual residents who live in the same district as the prison have as much political clout as 100 residents living in a district without a prison.

Counties throughout Tennessee have already begun the process of drawing new districts for the next decade, and at least 7 of them have already committed to ending prison gerrymandering:

• Trousdale County
• Knox County
• Hardeman County
• Rutherford County
• Giles County
• Morgan County
• Johnson County

There is still time for more counties to join this list.

To do so, a county must pass a resolution indicating its desire to end prison gerrymandering, and submit it to the Tennessee Comptroller. The Comptroller’s Office has drafted a sample resolution to help counties that want to take this important step. Counties need to act fast, because by state law, they must complete their redistricting process by January 1, 2022.

City and county governments often feel the most significant distortive impacts of prison gerrymandering. This year, though, Tennessee local governments finally have the opportunity to address this distortion and draw districts that truly represent the residents of their communities.

How many states have ended prison gerrymandering? About a dozen*!

*Our new chart details how to quantify the progress made across the country.

by Andrea Fenster, October 26, 2021

About a dozen states have ended prison gerrymandering. However, the precise number depends on the details. Prison gerrymandering can occur at different levels of government, be solved by different bodies of government, and be eliminated or mitigated through different methods, which can make it somewhat confusing to measure where prison gerrymandering has ended. We have compiled this overview to the progress being made to eliminate prison gerrymandering across the country.

While many people are familiar with redistricting at the Congressional level, these districts are often so big that prison populations rarely affect them. For that reason, Congressional redistricting is not discussed here.

How many states have taken action against prison gerrymandering? 16 states.

California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Montana, Michigan, Nevada, New Jersey, New York, Tennessee, Virginia, and Washington have all taken some action to reject prison gerrymandering.

However, these states have taken a variety of actions that affect redistricting in different ways. These differences are important, as they paint a picture of the road still ahead. No matter how you look at it, though, as of today, 47% of the country lives in a state that has formally rejected prison gerrymandering, adding to the growing body of evidence that it is time for the Census Bureau to count people at home.

How many states have taken any action to avoid prison gerrymandering in state-level redistricting? 14 states.

This count includes the 11 states below who passed legislation to formally end prison gerrymandering at the state level, as well as states that have taken other actions to avoid, but perhaps not permanently end, prison gerrymandering.

For example, Pennsylvania did not enact legislation, but the redistricting committee acted on its own to count people at home rather than at the prison where they are incarcerated. It was the first state to address prison gerrymandering through its redistricting committee.

Similarly, Montana is poised to take action against prison gerrymandering. There, members of the redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and are urging the U.S. Census Bureau to end prison gerrymandering nationwide.

Massachusetts is also included here, even though it does not count people at home. The Massachusetts Redistricting Committee concluded that the state constitution prohibits that solution, instead, Massachusetts is poised to minimize the impact of prison gerrymandering as they did in 2010: by taking prison populations into account when redistricting to ensure that they will not be concentrated in a small number of districts. Massachusetts also passed a joint resolution in 2010 calling on the Census Bureau to provide data that counts incarcerated people at their residence, not the prison. Our analysis of the proposed draft maps shows even further progress in avoiding prison gerrymandering for the 2020 districts.

How many states have enacted legislation addressing prison gerrymandering at any level? 13 states.

In addition to the 11 states that have ended prison gerrymandering through legislation at the state level, there are 2 states that have enacted state-level legislation that applies only to local governments.

Michigan’s laws require counties, cities, and towns to exclude people in state prisons who are not residents of the city or county for election purposes. Tennessee, on the other hand, explicitly allows counties to exclude people in correctional institutions who cannot register in the county as voters, but does not require it.

How many states have solved prison gerrymandering during state-level redistricting? 12 states.

Here, Illinois and Pennsylvania are included, but not Massachusetts or Montana. While Massachusetts may avoid or mitigate prison gerrymandering by taking prison populations into consideration, it does not directly solve the problem. Regardless, neither Massachusetts nor Montana is included here because the redistricting processes in those states are still ongoing.

How many states have passed legislation ending prison gerrymandering at the state level? 11 states.

This includes all states that have passed or enacted legislation to end prison gerrymandering, and where that language is mandatory, meaning that redistricting must exclude prison populations or count them at home. These 11 states are California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington. All of these states are included in the above categories.

How many states will not prison gerrymander in their state districts in the 2020 redistricting cycle? 11 states, so far.

Eleven states will not use prison populations to pad political districts this cycle. Pennsylvania is included here because its redistricting committee acted on its own to count people at home for the 2020 redistricting cycle. However, Illinois is excluded because that legislation is not effective until 2025, in time for the 2030 redistricting cycle. Neither Massachusetts nor Montana are included here; while we expect both states to avoid prison gerrymandering, neither has formally finalized their plans yet.

So, how many states have ended prison gerrymandering? The answer is somewhere between 11 and 16 states, depending on how complete and futureproof their solutions are. On top of that, more than 200 impacted local governments, including counties, cities, towns, and school boards, have also acted to end prison gerrymandering. By comparison, in the 2010 cycle, only 4 states—New York, Maryland, Delaware, and California—had passed legislation and only 2—New York and Maryland—had implemented it. But as long as the Census Bureau continues to count incarcerated people in the wrong place, any state-based solution is a stop-gap measure. While the different approaches that states have taken may be important to know about, these differences should not obfuscate the larger trend towards ending prison gerrymandering.

For detailed information on the different types of solutions to prison gerrymandering, please see our solutions page and our legislation quick-reference chart.

One important action can help end local prison gerrymandering in Wisconsin

A confusing and outdated attorney general opinion has forced Wisconsin local governments into prison gerrymandering, but there is still time to fix this before districts are drawn for the next decade.

by Mike Wessler, October 26, 2021

Small, rural cities and counties are particularly susceptible to the impacts of prison gerrymandering. Low populations and a prison building boom have combined to distort local governance and representation in unanticipated ways.

Few places exemplify this problem as vividly as Wisconsin. Take Adams County, which is north of Madison, for example. After it redrew its lines in response to the 2010 census, this community had a district where incarcerated people made up 62.5% of its population. That means 38 residents here have the same political representation as 100 residents in any other district without a prison. It’s even worse in Waupun, where people incarcerated there make up 75.5% of a district, meaning every 25 residents in this district have the same political clout as 100 residents in other parts of the city.

However, no part of the state feels the distorting local impacts of prison gerrymandering quite like Juneau County. After the 2010 census, as the county looked to redraw its political lines, each district needed to have a population of roughly 1,200 residents to ensure equal representation. However, a new massive prison built recently in the county complicated their efforts to draw fair districts. The prison was so big that if leaders included it in a district, it would mean that twenty residents in that district would have as much political representation as 100 residents in districts without a prison.

John Wenum, a longtime county supervisor who oversaw the county’s redistricting efforts in 2011, recently explained to the Milwaukee Journal Sentinel, “(The incarcerated people) weren’t residents in the normal sense… it actually skewed things in some very significant ways.”

Leaders in Juneau County recognized this was a problem and wanted to fix it, so they sought guidance from the state on how to do that, but were told their hands were tied. They learned an outdated and confusing 1981 opinion from the state’s attorney general directs local governments to draw new district lines without excluding incarcerated people. It requires local governments to take part in prison gerrymandering, even though they didn’t want to. In the absence of other legislative or regulatory guidance, attorney general opinions hold significant legal weight, so Wenum and other leaders felt they had no choice. He told the Journal Sentinel, “The attitude here was ‘We’re not going to rock the boat, we’ll go with the flow.'”

The bad news is this opinion meant that for the last decade, some residents of the county have had considerably more say in the actions of their county government than their neighbors.

But the good news is state and local leaders in Wisconsin still have the opportunity to fix this problem for the next decade.

Attorney general opinions are powerful, but like local district lines, they are not set in stone. Wisconsin’s current attorney general, Josh Kaul, can issue a new legal opinion that updates the outmoded legal reasoning from 1981 and makes it clear that local governments can address prison gerrymandering, and there are plenty of reasons for him to do so.

In recent years, more than a dozen states have taken meaningful actions to end this practice, more than 200 local governments have done so, too. Federal courts have ruled against prison gerrymandering. Even the Census Bureau has recognized the validity of efforts to fix this problem and taken steps to make it easier for governments to exclude or reallocate prison populations when drawing new district lines.

As we speak, cities and counties across the country are beginning the process of redrawing their political districts for the next decade. If Attorney General Kaul takes action soon to issue a new opinion, he can help Wisconsin local governments avoid being stuck with another decade of districts distorted by prison gerrymandering.

Pennsylvania ending prison gerrymandering, Montana close behind

Pennsylvania and Montana poised to become first states to end prison gerrymandering without legislation, a solution the Prison Policy Initiative has recommended in other states as well. New Jersey expands its law to cover congressional and local districts.

by Mike Wessler, August 31, 2021

Redistricting has officially begun across the country, and over the last few weeks, several states have taken important steps to ensure people who are incarcerated are counted at their homes when new districts are drawn rather than in a prison cell.

The most significant of these victories occurred in Pennsylvania, where Rep. Joanna McClinton worked with advocates to add that state to the growing list of places that have ended the practice of prison gerrymandering when drawing legislative districts. This victory was particularly important because instead of relying on legislation, the independent Legislative Reapportionment Commission decided to end the practice on its own, making it the first state to do so. In urging other members of the commission to take this step, McClinton made the implications of the decision clear when she said, “We cannot wait another ten years. The time to correct this injustice is right now.”

The Keystone State may have been the first to address prison gerrymandering through its independent redistricting commission, but it likely won’t be the last. In Montana, a bipartisan consensus has formed on the need to fix the problem. Members of the state’s redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and urging the U.S. Census Bureau to end prison gerrymandering nationwide–a step we’ve advocated that the agency take for nearly twenty years.

Finally, lawmakers in New Jersey, a state that previously ended prison gerrymandering in legislative redistricting, recently voted to expand their law to make it apply to congressional and local government redistricting as well. The measure was recently signed by Gov. Phil Murphy.

The next few months are sure to be a whirlwind, but it is still not too late for state and local governments to ensure equal representation for their residents. As we’ve seen in Pennsylvania and Montana, states can use their redistricting commissions to solve this issue without legislation. Similarly, cities, counties, and school boards can use information contained in the recently released census data to avoid prison gerrymandering when drawing their new districts.

The redistricting decisions made over the coming weeks and months will have implications for the next decade. As of today, 40% of the country lives in a state, county, or municipality that has formally rejected prison gerrymandering. While new lines are drawn over the coming months, we’re committed to growing this number further.

New quick-reference chart summarizes legislation, prison gerrymandering reform

Our new quick-reference chart helps advocates sift through the differences between states' legislative approaches to ending various aspects of prison gerrymandering.

by Andrea Fenster, August 30, 2021

More than 10 states have now passed legislation ending prison gerrymandering. However, each state has taken a slightly different approach towards achieving that goal, creating laws that sometimes differ in substantive (though not always substantial) ways.

We have created a new quick reference chart to help advocates and legislators sift through and compare some of these differences. Our chart includes the legislative history in each state, a statutory reference, a breakdown of which levels of government the law applies to, whether the law is mandatory or permissive, the different types of institutions covered, and how unknown or out-of-state addresses are dealt with.

Of course, our model legislation offers our best guidance for those looking to end prison gerrymandering in their own states.