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.

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.