Law School Professor explains how Census Bureau’s current practice of counting incarcerated people as “residents” of their prison facility results in two harms: misleading data and disproportionate political influence

Incarcerated individuals often have little in common with the residents in the communities surrounding their correctional facilities, and elected officials do not always consider incarcerated people their constituents.

by Jyoti Jasrasaria, July 13, 2016

Justin Levitt sent a letter to the U.S. Census Bureau commenting on the Census Bureau’s Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

In his letter, Professor Levitt encouraged the Census Bureau to count incarcerated individuals at their last known address before incarceration as a means to further equal representation in the democratic process. As a professor of constitutional law and the law of democracy at Loyola Law School, as well as a practitioner and litigator in the area of political participation, Professor Levitt bases his comments on the structure of representation and the effects of various voting systems and districting plans.

Professor Levitt explains that the Census counts most people at their “home.” Those whose “usual residence” is different from their “home” are typically in a new location for work or education, “and they are generally intertwined with the communities where they are laying their heads most often” by interacting with their new neighbors, following community rules and regulations, and enjoying the benefits of local services and activities. However, this is not the case for the 2.2 million people in the United States who are incarcerated. Professor Levitt points to the fact that incarcerated individuals have little in common with the residents in the communities surrounding their correctional facilities. He notes the results of a recent study:

[T]here are now more than 450 counties where the proportion of African-Americans in the incarcerated population is larger than the proportion of African-Americans in the surrounding county — and more than 200 counties where the proportion of African-Americans in the incarcerated population is more than ten times larger than the proportion of African-Americans in the surrounding county.

Moreover, incarcerated individuals do not interact with the local community, and “most Village Township residents will not likely consider them ‘neighbors.’” Elected officials themselves do not always consider incarcerated people to be their constituents. As Professor Levitt recounts:

I]n 2002, a New York state legislator representing a district housing thousands of incarcerated individuals said that given a choice between the district’s cows and the district’s prisoners, he would “take his chances” with the cows, because “[t]hey would be more likely to vote for me.”

Indeed, according to Professor Levitt, 28 states have explicitly provided that incarcerated persons do not lose their residence in their home communities when they are incarcerated.

Professor Levitt asserts that the Census’s current practice creates (1) informational harm by promulgating misleading data about community demographics and (2) democratic harm by giving some communities disproportionate political influence and leaving others with diluted voting strength. In support of this point, Professor Levitt notes that 87% of the people living in one district of Lake County, Tennessee were incarcerated, which gave that district’s 344 non-incarcerated residents the same representation in county government as the 2500 or so individuals in the other two districts. Likewise, there are sometimes very few individuals eligible to run for office in districts with large incarcerated populations.

As Professor Levitt’s letter explains, many states and localities have attempted to compensate for the Census Bureau’s inadequate counting. The Census Bureau should assist these efforts by updating its current practice, which pre-dates the equal representation principle as well as the sharp increase in the incarcerated population. Moreover, according to Professor Levitt, there are feasible ways, which he suggests, such as surveying and questioning incarcerated people, just as the Census Bureau does for non-incarcerated people, to collect the information regarding an incarcerated individual’s last known address.

Despite Professor Levitt’s well-supported arguments for updated criteria for counting incarcerated populations, the Census Bureau has proposed to continue counting incarcerated people at their correctional facilities and, thus, to continue providing faulty demographic information that distorts political representation.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

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