Counting prisoners as residents of rural prison towns for redistricting mirrors Southern strategy of counting slaves to increase representation in Congress, article says

A new article by John C. Drake, published in the Washington University Journal of Law & Policy explains the similarities between prison-based gerrymandering and the infamous 3/5 clause.

March 14, 2012

Washington University in St. Louis

March 14, 2012

John C. Drake,, (508) 340-0881

When states include prison populations in their legislative district maps, prison-host communities gain political power in the same way Southern states used slaves to gain extra representation in Congress, says a new article by John C. Drake, published in the Washington University Journal of Law & Policy. The article, “Locked Up and Counted Out: Bringing an End to Prison-based Gerrymandering” addresses a long-standing flaw in the U.S. Census that has been receiving considerable attention only in the last decade.

The U.S. Census counts people in prison as residents of the prison location, even though they remain residents of their pre-incarceration homes. Prisoners, who in 48 states may not vote, are disproportionately people of color; but prisons are typically located in disproportionately white, rural areas. When states use this data to draw districts, the result gives extra political influence to the districts that contain prisons, diluting the votes of everyone else. The New York Times editorial page coined the phrase “prison-based gerrymandering” to describe the practice.

“Comparing prison-based gerrymandering to the infamous three-fifths clause is a common rhetorical device,” says Peter Wagner, Executive Director of the Prison Policy Initiative and the nation’s leading expert on prison-based gerrymandering. “But John Drake goes further, and puts prison-based gerrymandering in the historical context.”

Prior to the elimination of slavery following the Civil War, the U.S. Constitution counted slaves as three-fifths of a person. “This is commonly misunderstood as an insult to Black Americans. But the real injustice was counting the slaves at all and swelling the political clout of the slave-owning South,” said Drake, a former journalist and a third–year law student at Washington University School of Law in St. Louis, Missouri. “Prison-based gerrymandering uses mass incarceration as a device for creating a new injustice: the dilution of voting strength in the urban communities that most prisoners call home.”

“Four states have so far had the wisdom to pass legislation to fix the Census Bureau’s prison miscount and end prison-based gerrymandering,” says Peter Wagner. “John Drake’s article is a powerful argument for why more states should follow their lead.”

“It was only through long, if ill-advised, negotiation that the framers of the U.S. Constitution included the three-fifths clause, which gave extra representation to the slave states,” said author John Drake. “Prison-based gerrymandering, by contrast, is an accidental by-product of modern rates of high incarceration. The result is no less pernicious – political power gained at the expense of a captive, disenfranchised population. States must now choose between intentionally diluting the votes of their own citizens who lack the good fortune of living near a prison, and using the legislative process to negotiate a solution.

Drake’s article also notes:

  • The Census rules on which prison-based gerrymandering relies are internally inconsistent: for example, students in boarding school are counted as residents of the parental home, whereas children in juvenile detention centers are counted as residents of the detention centers.
  • Prison-based gerrymandering creates and strengthens rural state legislative districts, whose lawmakers’ interests often are at odds with the disproportionately black and urban prisoners on whose backs they’ve gained political power. The prisoners do not consider themselves constituents of those lawmakers, and the lawmakers typically do not treat them as such.
  • Rural county legislatures have adopted a patchwork of policies to avoid dramatic cases of vote dilution like that in Florida’s Calhoun County where almost half of one district is incarcerated, giving the residents of that county district twice the political influence of other Calhoun County residents.
  • Prison-based gerrymandering results in the dilution of minority voting strength, which invokes the protections of the Voting Rights Act.

The Washington University Journal of Law & Policy is committed to generating a symposium-based publication that brings together communities of scholars, through a mutual and collaborative student and faculty process, emphasizing existing and emerging visions of the law in relation to interdisciplinary and multicultural perspectives, the implications of technology, and the consequences of economic globalization for the purpose of influencing law and social policy.

The article is available on Lexis and Westlaw at 37 WASH. U. J.L. & POL’Y 237 (2012) and on the internet at


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