New article from Northwestern University Law School demonstrates viability of state-based solution to federal failures in decennial census

Census miscount of prisoners skews legislative power across nation, but states can adjust Census data to use actual resident populations in redistricting.

January 3, 2007

Every decade, the Census Bureau counts tens of thousands of Chicagoans incarcerated in state prisons as if they were part of downstate communities, diluting the votes of Chicagoans and distorting how Illinois draws its legislative districts. The next census is less than four years away, and the Census Bureau is resisting calls to start counting prisoners as residents of their legal home addresses.

States are not powerless victims of this misguided census enumeration policy, however, points out a new article in Northwestern University’s prestigious Journal of Criminal Law and Criminology. Instead, Illinois and other states may legally apportion citizens to reflect their true legal residence rather than the misleading usual residence employed by the Census Bureau.

“Counted out Twice — Power, Representation & the ‘Usual Residence Rule’ in the Enumeration of Prisoners: A State-based Approach to Correcting Flawed Census Data,” by recently graduated Northwestern University School of Law student David Hamsher documents how populations of Chicago and other urban areas are undercounted, while rural areas which have lured prison facilities as job generators find their population over-counted.

While the simplest solution would be for the Census Bureau to start counting prisoners as residents of their home addresses, the Census Bureau has thus far resisted calls to change their enumeration procedures. Given this resistance, legislators in Illinois and New York State have introduced legislation to ensure that apportionment is based on a more accurate reflection of their population. “If the Census Bureau fails to fix its counting procedures before the 2010 Census, my article shows that Illinois and every other state has a very appropriate and viable solution”, said Hamsher.

In Illinois, Representative Arthur L. Turner has proposed adjusting the federal census to reflect the legal residence of all Illinois citizens, not just their usual residence. “Rep. Turner’s bill is a creative solution to a big problem that the Census Bureau has created for democracy in Illinois and around the nation,” says Peter Wagner of the Prison Policy Initiative, a national expert on prisoner enumeration issues.

Hamsher’s article is the first in-depth look at the legality of legislation intended to correct the Census Bureau’s flawed enumeration method. It provides the legal foundation necessary for legislators to support state-based solutions to federal failures. According to Wagner, “David’s article highlights the unfairness of present policy, shows the power of states to fix flawed Census data, and provides an important legal underpinning to an emerging solution.”

Founded in 1910, the Journal of Criminal Law and Criminology, published by Northwestern University School of Law is the second most widely subscribed journal published by any law school in the country.

The article is available at

David Hamsher,, 314.249.1268
Peter Wagner, Prison Policy Initiative

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