Montana legislators call for Census Bureau action on “clear, bipartisan consensus” for ending prison gerrymandering

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

by Aleks Kajstura, August 30, 2023

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

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

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

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

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

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

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

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

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

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

In their own words: Incarcerated people, their families, governments, and advocates tell the Census Bureau to end prison gerrymandering

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

by Aleks Kajstura, August 17, 2023

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

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

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

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

Personal impact

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

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

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

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

Disparate racial impact

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

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

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

Failure to meet state and local redistricting data needs

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

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

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

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

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

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

As a redistricting advocate in Indiana explained:

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

Inconsistent with other Census rules

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

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

Undermining Democracy

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

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

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

Following the states’ lead for 2030

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

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

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

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

Maine becomes the latest state to end prison gerrymandering

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

July 5, 2023

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

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

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

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

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

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

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

Prison gerrymandering is about representation, not money

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

by Aleks Kajstura, June 15, 2023

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

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

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

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

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

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

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

Illinois strengthens its anti-prison gerrymandering law

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

June 14, 2023

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

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

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

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

States to the Census Bureau: You created prison gerrymandering, you need to end it.

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

by Aleks Kajstura, May 2, 2023

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

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

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

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

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

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

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

On the biggest challenges, states’ hands are tied

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

1. Census and other federal agencies impede state efforts

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

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

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

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

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

2. Extra steps and unnecessary delays

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

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

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

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

3. Data quality issues magnified for states

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

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

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

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

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

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

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

Census Bureau needs to solve the problem it created

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

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

Congresswoman Ross introduces bill to end prison gerrymandering nationwide

Federal legislation would require the Census Bureau to count incarcerated people at their true homes, rather than in prison cells.

by Danielle Squillante, April 26, 2023

Today, Congresswoman Deborah Ross from North Carolina, along with Rep. Mark Pocan of Wisconsin, Rep. Emanuel Cleaver of Missouri, and Rep. Emilia Strong Sykes of Ohio, introduced legislation to end prison gerrymandering nationwide. The bill would require the Census Bureau to count incarcerated people at their last known residence rather than their prison cell, which is where the Bureau currently counts them. When states and local governments draw political districts using Census data that counts incarcerated people in prisons, they unintentionally enhance the representation of people who live near prisons while diluting the representation of everyone else. This legislation would ensure that every community receives equal political representation.

The introduction of this bill comes on the heels of Montana — with wide bipartisan support — passing legislation to end prison gerrymandering in the state permanently. Montana Governor Greg Gianforte signed the measure — which received near-unanimous support — into law yesterday.

The Census Bureau has the ability to fix this problem on its own but thus far has stubbornly refused to do so. There are plenty of reasons for it to make this change:

• Governments are increasingly rejecting the Bureau’s flawed way of counting incarcerated people, signaling the agency is not meeting its responsibility to provide data that is ready for use by state and local governments;
• The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration;
• Communities of color are disproportionately harmed by prison gerrymandering; and
• The Bureau’s policy treats incarcerated people differently than others in similar situations.

State and local governments already recognize the importance making this change. Roughly half of the U.S. population lives in a place that has taken steps to end prison gerrymandering, with over a dozen states and over 200 local governments — both urban and rural — taking action on this issue. In the absence of a federal solution, these states and local governments have had to make corrections and adjustments to Census data to ensure it accurately reflects its population. After the 2020 redistricting process, states expressed frustration with the current process and challenges they faced, including accessing data in a timely manner, adjusting the data so it aligns with state laws, and getting address information for individuals in federal custody.

The best way to solve this problem is for the Census Bureau to change its policies to count incarcerated people at home — something it can do today without legislation. By acting to make this change now, before legislation is passed, the Bureau can develop a comprehensive research and implementation plan that ensures this transition is smooth and thoughtful. However, today’s bill shows that if the agency fails to act, lawmakers in Congress are increasingly ready to force it to finally fix this problem.

It’s official: With bipartisan support, Montana permanently ends prison gerrymandering!

The victory in Montana is a testament to the growing bipartisan and rural support for redistricting reforms that count incarcerated people in their home communities. It's time for the Census Bureau to follow suit.

April 25, 2023

After it received bipartisan and nearly unanimous support, today, Montana Governor Gianforte signed into law a bill permanently ending prison gerrymandering in the state. Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political representation at the expense of everyone else.

The new law, which was sponsored by Sen. Shane Morigeau, codifies reforms implemented by the Montana Districting and Apportionment Commission when it drew new legislative maps after the 2020 Census. It requires the state’s Department of Corrections to collect and report data on the home addresses of people in its custody to the Commission, so members can use it to draw maps that accurately reflect the population of the state.

When drawing the state’s current legislative maps, the Commission had to overcome significant obstacles to address prison gerrymandering. It had to pay outside contractors to adjust the flawed data provided by the Census Bureau to count incarcerated people at their last known residence. In a bipartisan letter to the Bureau, the Commission called on the agency to adjust its residence rules to count incarcerated people at their last place of residence, so states have more complete and useful redistricting data going forward.

Montana’s bipartisan progress on this issue continues the long-standing history of rural communities calling for reforms to end prison gerrymandering. The movement to end this practice first came to prominence when Anamosa, IA — a town of roughly 5,300 residents — realized it had a City Council district in which 96% of the residents were incarcerated, making it nearly impossible to draw districts that truly represented the population of the community. Since then, lawmakers and news outlets from communities large and small have called for an end to the practice.

Since we began our national campaign to end prison gerrymandering in 2001, more than 200 local governments and over a dozen states have taken action to end the practice. Roughly half of U.S. residents now live in a city, county, or state that has taken action to end prison gerrymandering.

What are states saying about their experience addressing prison gerrymandering?

Redistricting reports and letters provide insights into the challenges states faced, and show why Census Bureau action is necessary.

by Aleks Kajstura, February 24, 2023

After more than two years and countless hours of work, the process of redrawing legislative district lines after the 2020 Census is now over. From data delays to pandemic-related challenges, it was a redistricting cycle like no other. One of the most significant positive developments, though, was the sheer number of states and local governments that took action to end prison gerrymandering — a problem created by the Census Bureau counting incarcerated people as residents of prison cells rather than their home communities. When states use those Census counts to draw legislative districts, they distort political representation by unfairly giving people who live closest to prisons a louder voice in government, to the detriment of everyone else.

During the 2010 redistricting cycle, only two states — Maryland and New York — adjusted their redistricting data to count incarcerated people at home. This cycle, 13 states counted incarcerated people at home.¹ When combined with the more than 200 cities and counties that have also addressed the problem, roughly half the country now lives in a place that has taken action to end prison gerrymandering.

Traditionally, after the end of a redistricting process, states publish reports that explain their method, highlight challenges they faced, and identify areas for improvement during the next cycle. Unfortunately, fewer states produced these reports after completing the 2020 cycle, perhaps the result of the pandemic squeezing the time and resources they had available. However, several states that published reports highlighted the issue of prison gerrymandering. These reports offer important insights into their experiences and show why the Census Bureau must change its policies before the 2030 cycle.

California

In their report, members of California’s staunchly independent Citizens Redistricting Commission note that they faced a common but serious problem in their effort to end prison gerrymandering: a lack of cooperation from the Federal Bureau of Prisons (BOP). They explained in their final report:

“The Commission also sought the last known address information for those in federal custody, but was unable to obtain the necessary information to complete the task of reallocating that population.”

California’s inability to get addresses for people incarcerated in federal facilities is not unique. BOP has stubbornly and consistently refused to share that data with any state. With 102 federal prisons in the country locking up more than 200,000 people, this refusal to cooperate with the home states of people in its custody is indefensible and creates a limit to state solutions. It’s a critical gap that can only be closed through action by federal officials, most efficiently by the Census Bureau.

Pennsylvania

Pennsylvania’s report, which was authored by the chair of its redistricting commission, devoted 10 pages to the issue of prison gerrymandering, by far the most exhaustive account in any state. In it, he touched on two areas that are a commonality across the states addressing prison gerrymandering.

First, when discussing the need to collect and process data in a timely manner, he wrote:

“My practical concern regarding data availability was heightened by the pressures tied to our constitutional deadlines, deadlines relating to the upcoming primary election schedule, and the already-dramatically delayed delivery of census data. However, after a number of interactions with the Department of Corrections, the Penn State Data Center confirmed that creating a population dataset incorporating Leader McClinton’s resolution would only result in a comparatively short delay, and that proved to be the case.”

The chair’s description of these challenges shows the fine line that states must walk if they want to adjust Census data to end prison gerrymandering. To make it work, they need the time, the will, the know-how, and the data. Fortunately, Pennsylvania had all of these things and was able to tackle this issue. But, with the consensus among states becoming clearer on this issue by the day, it raises important questions: If the Census Bureau has the ability and responsibility to provide data to the states in a usable manner, why doesn’t it? Why does it force them to jump through these hoops that take time, money, and expertise?

That’s not the only issue the Pennsylvania commission chair discussed. He also explained that one of his primary motivators for taking on this reform was the need to count people in a way that aligns with state law, noting:

“I further agreed that reallocating prisoners would be consistent with the Commonwealth’s policy as it relates to inmates and voting. In particular, S 1302 of the Voter Registration Act states, “Except as otherwise provided in this subsection, no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located. The individual shall be deemed to reside where the individual was last registered before being confined to the penal institution, or, if there was no registration prior to confinement, the individual shall be deemed to reside at the last known address prior to confinement.” 25 Pa.C.S. S 1302(a)(3). That language can be viewed as a strong and longstanding expression of legislative policy, and it would be consistent with that policy to count prisoners for redistricting purposes in the same place they could vote, if able.”

Again, this is not a problem unique to Pennsylvania; most states have similar residence laws that clarify that incarceration does not change a person’s residence. Ending prison gerrymandering ensures that redistricting data aligns with the common sense notion of where someone considers home and with legal definitions of residency.

Montana

Montana just finished its redistricting effort a few weeks ago,so it has not yet published a report on its process (and we’re not sure if it will). However, the state’s redistricting commission made its thoughts clear when it sent a letter to the Census Bureau requesting that it provide more useful redistricting data by counting incarcerated people at home in future Censuses, explaining:

“One of the challenges we face is how to account for incarcerated populations as we draw those lines. While the U.S. Census Bureau (Bureau) counts state and federal prisoners as residents of the correctional facility in which they reside on Census Day, many Montanans would prefer that these prisoners be counted as residents of the places in which they resided prior to incarceration. We are currently exploring methods that our state could use to gather that residential information and adjust the P. L. 94-171 data that we receive from the Bureau. However, we encourage the Bureau to update its concept of “usual residence” for future census operations. Specifically, we request that the Bureau count state and federal prisoners at their home addresses rather than at correctional facilities. In addition, we ask that the Bureau allow prisoners to submit race, ethnicity, and address data through forms completed by the prisoners themselves when possible. These changes would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s experience is a good example of how the Census’ current policy that puts the burden of adjusting the data on the states is not a viable solution. Despite the Commission’s unanimous and bipartisan decision to count incarcerated people at their true homes, the state still struggled to end prison gerrymandering successfully. Ultimately, its ability to address this problem was indirectly made possible by the unexpected COVID pandemic. Travel restrictions meant that funds originally budgeted for that purpose could instead be used to pay for geocoding 1,335 addresses and then adjusting the block populations accordingly in the redistricting data files. If not for COVID-imposed limitations coinciding with redistricting, the state would not have had the funds to cover such a small, simple, and basic expense.

Montana is the second state to formally request that the Census Bureau changes how it counts incarcerated people, joining Massachusetts, which which passed a resolution calling for this change in 2014.

New Mexico

While New Mexico has not yet addressed prison gerrymandering, its Citizen Redistricting Committee spent significant time on the problem and dedicated three pages of its report to the issue, including discussions on its explorations of the home address data available in the state. The Committee found that while they could get address information for most people in state prisons, the data was far more incomplete and difficult to access for people in county jails. Ultimately, rather than taking action on the problem, the Committee recommended: “that the Legislature consider legislation that will address the prison gerrymandering issue and that New Mexico take advantage of the assistance offered by the United States Bureau of Census for addressing the issue.” Although several states succeeded with last-minute efforts to count incarcerated people at home, such success is not guaranteed.

Census Bureau needs to act

States have enough preparations to worry about in the decennial ramp-up to their redistricting efforts; they shouldn’t have to also worry about quickly changing Census Bureau data to make it usable. The Census Bureau needs to provide redistricting data that is ready to use.

The 2020 redistricting cycle may prove to be a turning point in the national campaign to end prison gerrymandering. Over the last twenty years, this issue has gone from being often overlooked to being a primary and bipartisan concern of those tasked with drawing new legislative lines.

The issues states faced when addressing this problem in 2020 are not going away. And, as more and more states agree that counting incarcerated people at their homes creates more fair and equitable representation in government, the need for Census action will become even more pressing. It remains to be seen whether the Bureau will take action to produce data that is actionable and responsive to the needs of states or whether it will continue to force them to dedicate their limited time and resource to make the data usable.

With unanimous, bipartisan support, Montana ends prison gerrymandering

State asks Census Bureau to end this problem nationwide.

February 13, 2023

For immediate release — This weekend, Montana’s Districting and Apportionment Commission officially approved new legislative maps that count incarcerated people at their homes instead of in prison cells, ending prison gerrymandering in the state. During the redistricting process, ending prison gerrymandering consistently received unanimous, bipartisan support from commission members and was championed by Native American leaders in the state. Montana is the third state to address this problem without legislation¹. It is among more than a dozen states and over 200 local governments that have ended the practice.

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents. Montana’s actions limited that injustice in the state.

“The maps approved by Montana’s redistricting commission will ensure that all residents of the state have an equal voice in the decisions made by their legislative leaders,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative and a long-time advocate for reform. “This victory represents a clear, bipartisan rebuke of the broken and outdated way the Census Bureau counts incarcerated people.”

In addition to approving new legislative districts, the Commission has called on the Census Bureau to count incarcerated people at home in 2030. In a letter to the Bureau, it notes this change “would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s success was not without difficulties. As a result of the Census Bureau’s flawed method of counting incarcerated people, the Commission was forced to hire outside experts to fix the data at taxpayer expense. Even still, the state was still hampered by missing address data for many incarcerated people.

“The members of the Districting and Apportionment Commission should be commended for addressing this problem under a tight timeline and with considerable obstacles,” Kajstura said. “The Census Bureau should act on the Commission’s request to change how it counts incarcerated people as it develops rules for the 2030 Census.”

Roughly half of U.S. residents now live in a city, county, or state that has taken action to end prison gerrymandering.

Commission members also asked the state’s Congressional delegation to pass legislation to end prison gerrymandering, asked the state’s governor and Department of Corrections to collect home addresses for incarcerated people, and brought forward legislation to permanently address this issue in the state. The legislation has already passed the Senate with bipartisan support and is currently making its way through the House.

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, combined 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.