by Peter Wagner, June 28, 2004

In 1894, Michael Cady tried to register to vote using his address at the Tombs Jail in New York City. Jail inmates are allowed to vote, but he was convicted for illegal registration because the NY Constitution says that

“no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

The prosecution’s theory was that while Cady was allowed to vote, he could not vote in the prison district. Even though Cady was planning on staying at the Tombs forever, Cady must have — the prosecution argued — lived somewhere else before.

The highest court in New York agreed:

The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment … go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.”

When counting the population of each state, the federal Census counts the nation’s mostly urban prisoners as if they were residents of the rural towns with the prisons. When the Census first started in 1790 with the purpose of dividing Congressional seats among the states, that probably made sense. But today one of the biggest users of Census data is state legislatures that must redraw their legislative districts each decade to comply with the Supreme Court’s “One Person One Vote” rule of equally sized districts. Relying on the Census Bureau to count the population sounds convenient and fair, but until the Census Bureau changes how it counts prisoners, using the federal Census data might not be the best way to insure that districts comply with the requirements of the 14th Amendment and how many state constitutions define residence.

If calling your jail cell your residence gets you sent to prison, shouldn’t it also be illegal for rural legislators to call prisoners their “constituents”?

Read more about Michael Cady in Importing Constituents: Prisoner and Political Clout in New York.

by Peter Wagner, June 21, 2004

Each decade, the U.S. Census counts the population and then gives the counts to state legislatures for use in redistricting. Legislators take the data and redraw their districts so that each contains the same number of people. Equally sized districts ensure that each person in each district has an equal access to government. This practice is known as the “One Person One Vote” rule and has been the law of the land since the Supreme Court interpreted the 14th Amendment of the Constitution to require districts of equally sized populations in the 1963 case Reynolds v. Sims.

The problem? Based on a methodology developed more than two centuries ago, the Census Bureau counts the nation’s now 2 million prisoners as if they lived at the prison. The method of counting other “special populations” has evolved over time, but the way that prisoners have been counted has gone unquestioned until recently.

Prisoners can’t vote and they are residents not of the prison town but of communities often very far and very different from the prison. While prisons are unquestionably big industries in many rural areas, the temporary physical presence of the prisoners does not make prisoners a part of the prison town in any legal or social sense.

Crediting rural towns with the prison population reduces the number of real rural residents required for a district. This boosts the weight of rural votes while diluting the strength of a vote in the prisoner’s home district.

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by Peter Wagner, June 14, 2004

On June 7, talks between the New York State Senate and the Assembly on how to best reform the draconian Rockefeller Drug Laws broke down. Publicly, the dispute is over ideological disagreements, but an obscure Census quirk that counts prisoners as residents of the prison’s legislative district may be responsible for distorting how the debate is framed.

The Assembly wanted to reduce a broad range of drug sentences while the Senate wanted to focus only on the most extreme sentences. Previous columns (May 24, 2004 and December 1, 2003) have profiled the district of the Senator’s lead negotiator, Dale Volker. This column examines the district of another member of the Senate’s delegation to the conference committee, Crime Committee Chair Senator Michael Nozzolio.

The 54th District Seneca Falls Republican explained the Senate’s perspective at the start of the meetings: “Our focus is on the victim, not the drug dealer.” The Assembly members took the opposite approach, arguing that drug crimes are victimless crimes and should have sentences shorter than those imposed for violent acts.

An analysis of Senator Nozzolio’s district suggests that his opposition to a thorough repeal of the Rockefeller Drug Laws may not lie just in ideology but in an obscure Census quirk that counts prisoners as if they were residents of the prison town. Because 65.5% of New York State’s prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This swells the political power of upstate legislators and their real constituents while diluting the clout of New York City’s residents.

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by Peter Wagner, June 7, 2004

Many prison town officials are quick to claim prisoners as residents when the Census Bureau comes to town, but prisoners report that this is the only time these officials are so welcoming.

The Census Bureau counts the nation’s mostly urban prisoners as if they were residents of the prison town. When the Census’ only purpose was to count the total population of each state for purposes of apportioning Congress, this procedure might have made sense. Today, when this data is used for state legislative redistricting, the method is an outdated relic that distorts the size of communities within the same state. Last week’s column discussed the theoretical rationale for defining residence based on the place you willingly choose to be and argued that since prisoners are moved to prison against their will, their residence is unchanged. In prior columns, I’ve written that most states have constitutional clauses and statutes that define residence for electoral purposes as to exclude prisons. This column explores how communities with prisons conceive of prisoner residence.

In the cases where the Census Bureau erred and placed the prison in the wrong rural town, the town with the prison frequently complained. But outside of the Census, do local officials consider prisoners to be residents of the town? Are there local services that are available only to residents that prisoners are denied on the basis that the prisoners are not residents?

To find out, I placed classified ads in publications that prisoners read and was flooded with responses. Many prisoners were intrigued, but stumped. This letter was typical:

“Albion State Penitentiary [where I am incarcerated] is so far out in the woods, in the extreme northwest corner of Pennsylvania, it is known as Far B Yon. … I’d be pleased to help … but I have no idea what organizations or types of services to request assistance for.”

By virtue of their incarceration, prisoners are not able to visit the local parks or discuss the affairs of the day in the town square, but my correspondents did identify two local services applicable only to residents but denied to them: the local library and the court system.

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