by New York Times, December 27, 2005

New York Times Editorial Board, December 27, 2005

The first Constitution took for granted that enslaved people could not vote, but counted each slave as three-fifths of a person for the purpose of apportioning representation in Congress. This inflated the voting power of slaveholders and gave them much more influence in legislative matters than their actual numbers warranted. No American would knowingly tolerate such an arrangement today. But a glitch in the census that inflates the populations of some state legislative districts – thus exaggerating their voting power – has led to a contemporary version of that problem. It involves counting prison inmates in the district where they are confined rather than where they actually live. The Census Bureau could fix this problem in a heartbeat, so it needs to get a move on.

The culprit is a provision in the census that counts prison inmates as “residents” of the institutions where they are held, often for relatively short periods of time. Denied the right to vote in all but 2 of the 50 states, the inmates are nonetheless treated as voters when the State Legislatures draw up legislative districts. This practice mattered little 30 years ago, when the prison population was tiny. But with about 1.4 million people in prison today, it can be used to shift political power from one part of the state to another.

A startling analysis by Peter Wagner of the Prison Policy Initiative found original text hereseven upstate New York Senate districts meeting the population requirements only because inmates were included in the count.original text here The Republican Party in New York relies on its large upstate delegation for its majority in the State Senate – and for its political power statewide. New York is not alone. The Prison Policy Initiative’s researchers found 21 counties nationally where at least 21 percent of so-called residents lived behind bars.

By counting these nonvoting inmates as residents, the prison counties offend the principle of one person one vote, while siphoning off political power from the home districts to which the inmates will return as soon as they are released. Since inmates are jobless, their presence also allows prison districts to lower their per capita incomes, unfairly increasing their share of federal funds earmarked for the poor. Congress, which has just caught on to this, recently gave the Census Bureau 90 days to file a report on the feasibility of counting inmates at their homes of record rather than in prison. At the same time, a committee overseen by the National Academy of Sciences has been studying the residency issue and is expected to make its final report this spring. But why does the bureau need another study to decide whether it wants to uphold the one-person-one-vote principle? The bureau should get to work immediately on procedures that would allow it to count inmates where they actually live – and get those procedures locked in place by the 2010 census.

Article explaining that the prisoner miscount distorts how rural counties distribute their own funds, but does not affect state distributions.

by Peter Wagner, December 8, 2005

Census 2000 found one out of every 200 residents of New York City in an upstate prison and counted them as if that was their actual residence. I have written extensively on this site about how this relatively small population transfer is magnified through the redistricting process to radically change the balance of power in New York in violation of the state and federal constitutions.

The impact of Census counts of incarcerated people on funding streams for local governments is far smaller than the political impact, but it is worth exploring how funding is affected and who gains and who loses funding from the practice. In contrast to the political effects, the transfer of 0.5% of New York City’s population upstate is, when dropped in the giant ocean that is the budget processes of the federal, state and local governments, a tiny ripple that disappears long before reaching the shore.

These budget processes are not commonly understood, and the resulting confusion impairs an honest debate about reforming the Census Bureau’s method of counting incarcerated people.

This article will make two critical points:

  1. The way the Census counts prisoners does not significantly reduce the funding available to the urban communities where most prisoners come from.
  2. The financial Census benefit to prison towns comes not from the places that prisoners come from but at the expense of other rural communities without prisons.

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by Peter Wagner, September 26, 2005

New York Times Editorial, September 26, 2005

A longstanding quirk in census rules counts incarcerated people as “residents” of the prisons where most are held for only a short time, instead of counting them in the towns and cities where they actually live. This practice was scarcely noticeable 30 years ago, when the prison population was insignificant. But with 1.4 million people in prison today, this padding of electoral districts’ population figures shifts political power from the densely populated urban areas where most inmates live to the less populated rural districts where prisons are often built.

In 48 of 50 states the inmates cannot vote anyway. But they still count as constituents when state legislators sit down to draw up legislative districts. This bogus inflation gives prison districts undeserved strength in the state legislature and more influence than they would otherwise have in state affairs. Indeed, many legislative districts actually contain far too few people to be legal districts at all when the nonvoting inmates are subtracted. In some places, the phantom constituents account for more than 20 percent of the population count.

This arrangement has an unfortunate resemblance to early America under slavery, when slaves were barred from the polls but counted as three-fifths of a person for the purposes of apportioning representation in Congress. In addition, legislators from the rural prison counties often use this purloined power to vote against the interests of the urban communities from which prison inmates most typically come. By counting impoverished inmates as citizens, the prison counties also reap more than a fair share of federal dollars that are earmarked for the poor.

Several experts, including a former director of the census, have suggested that the bureau count inmates at their preprison residences. A panel reviewing residency issues in general has heard compelling testimony that should drive it to the same conclusion. And instead of waiting until the next census in 2010, the Census Bureau should simply change its procedures now. Counting inmates where they live would cure what has clearly become a troubling flaw in the census process.

by Peter Wagner, June 22, 2005

NEWS RELEASE JUNE 22, 2005 FOR IMMEDIATE RELEASE CONTACT:Brenda Wright, National Voting Rights Institute (617) 624-3900, ext. 13
Peter Wagner, Prison Policy Initiative

Today, the full U.S. Court of Appeals for the Second Circuit is hearing arguments in two cases alleging that New York’s felon disenfranchisement laws violate the Voting Rights Act and the U.S. Constitution (Muntaqim v. Coombe and Hayden v. Pataki). The National Voting Rights Institute and the Prison Policy Initiative have filed an amicus brief with the Court arguing that the Court should consider the redistricting implications of disenfranchisement as part of the “totality of circumstances” which must be examined under the Voting Rights Act. The brief highlights the New York State legislature’s racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in upstate prisons.

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by Peter Wagner, June 1, 2005

The American system of democracy distributes political power to the people by the means of legislative districts, which are redrawn after the Census each decade to ensure that each district contains the same number of people. When these district lines are fairly drawn around different “communities of interest”, the system works quite well at allowing the citizenry to exert political power in proportion to their numbers. But the discussion over how to best draw the lines breaks down when the underlying Census data does not reflect the actual populations of our communities.

The Census Bureau counts disenfranchised prisoners as if they were residents of the places where they are temporarily and involuntarily incarcerated. One of the most visible impacts on the political process is in New York’s 59th Senate District represented by Senator Dale Volker. Senator Volker claims his stance as the state’s staunchest defender of the draconian Rockefeller drug laws is in the interests of his constituents. But in 2001, only 3 people were sentenced to state prison for drug offenses from Senator Volker’s home Wyoming County. Even when I compensated for the huge population difference between New York City and Wyoming County, I found that New York City residents were 8 times as likely to be sent to prison for drug offenses in 2001 than residents in Wyoming County.

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by Peter Wagner, April 18, 2005

In previous articles, I’ve explained how the two states that currently allow prisoners to vote, Maine and Vermont, require prisoners to vote via absentee ballot back home. Prisoners are not allowed to vote in local elections because they are considered residents of their home communities, not the prison towns.

But this rule applies in other states as well. In contrast to people in state prison for felonies, most states allow jail inmates (generally those awaiting trial or serving a short misdemeanor sentences) to vote. A voting rights pamphlet [PDF] issued by the Pennsylvania Secretary of State and distributed to incarcerated people shows how that state interprets its own residence rules for incarcerated people.

The rules state that a prison cannot be used as a voting address, and that the person should vote using either their last registered address or register at their last pre-incarceration address. But the rules also contain a common sense provision that keep the rule fair and accurate: prisoners may also establish a new residence outside of the correctional facility, “for example, if the inmate’s spouse establishes a new residence in which the inmates intends to reside upon his/her release from confinement.”

Pennsylvania, like most states, defines residence and structures its democracy around the idea that people are residents of the part of the state they choose to be in. Incarceration does not qualify as a residence because it is involuntary. That makes sense, but this carefully constructed concept breaks down when the state relies on federal census data to draw its legislative districts because prisoners and prisons are unevenly distributed in the state. Forty percent of the state’s prisoners are from urban Philadelphia, and all are incarcerated outside of the city in often very remote locations.

In order to comply with their own rules on residence, states like Pennsylvania need the Census Bureau to change how they count incarcerated people. While it may have made sense to count prisoners as residents of the facility during the first census in 1790, both high incarceration and modern uses of the census for redistricting require a new approach.

Thanks to Jon E. Yount from bringing this pamphlet and its coverage in the February 2005 issue of Graterfriends, published by the Pennsylvania Prison Society to my attention.

by Peter Wagner, April 11, 2005

Zoe Gottlieb, a law student at the New York University School of Law, has made available on Prisoners of the Census the first review in southern states of the impact of how the U.S. Census counts prisoners. The paper, Prisoner enumeration and the “Usual Residence” rule in southern states, [PDF] looks at the county of origin and county of incarceration for prisoners in Georgia and North Carolina.

In the states I have previously studied, the urban areas often have large Black and Latino populations while the rural areas house the majority of the prisons but are largely white. In New York, I found that although New York State’s prisoners are 82% Black or Latino, 98% of New York’s prisoners are incarcerated in Senate districts that were disproportionately White for the state as a whole.

Ms. Gottlieb’s study is the first attempt to quantify at the county level in the South whether prisons are likely to be built in white rural areas. Given the very different demographics of the South and the fact that that region has the highest incarceration rate in the country, Gottlieb’s review is well timed to the growing national interest in the accuracy and utility of Census data.

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by Peter Wagner, April 5, 2005

The U.S. Census Bureau counts people in prison where their bodies are confined — in prison — not the communities they come from and where they are genuine members. This would be an item of statistical trivia, but the new numbers give it new meaning. More people now live in prison and jail than in our three least populous states combined. Organized differently, they would have six votes in the United States Senate. It is not trivia anymore.

A new article in Pace Law Review traces the unanticipated effects of this counting method. Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From [PDF] by Eric Lotke and Peter Wagner is the first academic article to quantify the impact of prison population counts on both the political process and on state and federal funding streams.

by Peter Wagner, March 28, 2005

New York’s conservative State Senator Dale Volker is glad prisoners can’t vote, because if they did, as he told Newhouse News Service, “They would never vote for me.” Given Volker’s role as the leading defender of the draconian Rockefeller Drug Laws, prisoner opposition to Volker might not be surprising. But that Volker, who represents a mostly white rural part of the state, would care who the state’s mostly Black, Latino and urban prisoners might vote for is, on the surface, surprising. The explanation is that Volker owes his seat to a once-obscure Census Bureau glitch that credits the prison location with the population of prisoners involuntarily incarcerated there. Without credit for the 8,951 prisoners in his district, Volker’s sparsely populated rural district would need to be redrawn.

Our modern conception of democracy — based on the One Person, One Vote rule that requires legislative districts to be redrawn each decade to contain roughly equal numbers of people — is now skewed by the Census Bureau’s outdated method of counting incarcerated people. The Bureau developed the “usual residence rule” for determining where people are counted for the first Census in 1790. While the rule for other special populations like students and military have evolved over time, the method of counting prisoners remains mired in the past. In 1790, this rule might have made sense, because the Census Bureau had a far simpler purpose: to count the number of people in each state, in order to determine their relative populations for purposes of Congressional reapportionment. It did not matter — for purposes of comparing New York’s population to New Jersey’s — whether an incarcerated person was counted at home in New York City or in the remote Attica Prison, as long as they were counted in the right state. Although our society and our uses for Census data have changed radically since 1790, the Census’ method of counting prisoners has unfortunately remained the same.

Continue reading →

by Peter Wagner, March 21, 2005

The U.S. Census currently counts prisoners as residents of the correctional facility, despite the requirement in many state constitutions that incarceration does not change a residence. Because prisons tend to be built far from the communities where most prisoners originate, when states rely on federal census data to redraw their legislative district lines, they unwittingly violate their own constitutions and distort the distribution of political power in their states.

Although the use of incarceration and sentence lengths have greatly increased in recent decades, the statistics of the New York State Department of Correctional Services underscore the wisdom of the state constitutional requirement 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.” N.Y. Const. art. II, § 4.

Incarceration meets neither the voluntary nor the intent to remain requirements of residence. Prisoners not choose to move to a prison town, they are sent there against the will by the state. Despite ever-increasing sentence lengths, the public perception that most prisoners will never be released is unfounded. In New York State in 2000, the median time served in custody is 24 months. That same median prisoner will be eligible for release in less than 15 months. Incarceration is merely a temporary absence from home, not the creation of a new residence that severs ties to the old.

New York State publishes another statistic that emphasizes how temporary and involuntary a prisoner’s presence in the prison location is: In New York State, the median time served in the current facility is less than 7 months. The average prisoner might be in more than 5 different prisons during his or her sentence, each at the discretion of the Department of Corrections.

Counting prisoners as residents of the prison location might make sense for the Census Bureau and the national count, but it is an inadequate way of determining where a state’s population resides for purposes of distributing political power within a state. Either the Census Bureau needs to update its methods, or states need to begin developing new ways to count their population.

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