For county governments, the practice of redrawing district lines every ten years is usually a fairly routine process. You get the new data, examine it, and make minor tweaks to districts based on where your population grew and where it shrank. This year, though, thanks to a change in state law, counties in Tennessee have, for the first time, an opportunity to make their districts fairer and more representative by ending prison gerrymandering.
Most states leave it up to local governments to decide whether to include prison populations when drawing their district lines. However, Tennessee was one of just a handful of states that previously explicitly prohibited counties from cutting the prisons out of their local data when they redistrict. This prohibition, combined with a prison-building boom in rural areas, resulted in huge distortions created by prison gerrymandering.
This electoral inequality was particularly acute in Trousdale County, a community with fewer than 8,000 residents located northeast of Nashville. When it looked to redraw its districts after the last census, it discovered that the recently built prison, which locked up more than 2,500 people from all corners of the state, had been included in the census data for the county. This data made it impossible to draw fair and equal districts that complied with the requirements of its county charter. And because state law at that time required them to include the population of people who are incarcerated when they draw district lines, the community was stuck.
State Senator Ferrell Hailie (R) told the Hartville Vidette, “The situation (Trousdale) has, with a small population and a prison with a large population, really created a problem.”
Trousdale looked to state lawmakers for help. Sen. Hailie brought forward legislation to amend state law to give counties the option to exclude people who are incarcerated when drawing district lines. It freed them to end prison gerrymandering for the first time. In 2016, the measure received wide bipartisan support, passed unanimously in the Senate, and was signed into law.
This new law doesn’t just apply to Trousdale. Upon its passage, Sen. Hailie told the Hartville Vidette, “This will help other counties as well.”
Many counties in Tennessee can benefit from the new law’s flexibility. After the 2010 census, Tennessee was home to some of the districts most severely distorted by prison gerrymandering, giving residents who live in the same district as a prison significantly more political representation than their neighbors. For example, a prison accounts for 87% of the population of a district in Lake County. That means 13 actual residents who live in the same district as the prison have as much political clout as 100 residents living in a district without a prison.
Prison population as percent of a single district
Counties throughout Tennessee have already begun the process of drawing new districts for the next decade, and at least 7 of them have already committed to ending prison gerrymandering:
There is still time for more counties to join this list.
City and county governments often feel the most significant distortive impacts of prison gerrymandering. This year, though, Tennessee local governments finally have the opportunity to address this distortion and draw districts that truly represent the residents of their communities.
About a dozen states have ended prison gerrymandering. However, the precise number depends on the details. Prison gerrymandering can occur at different levels of government, be solved by different bodies of government, and be eliminated or mitigated through different methods, which can make it somewhat confusing to measure where prison gerrymandering has ended. We have compiled this overview to the progress being made to eliminate prison gerrymandering across the country.
While many people are familiar with redistricting at the Congressional level, these districts are often so big that prison populations rarely affect them. For that reason, Congressional redistricting is not discussed here.
How many states have taken action against prison gerrymandering? 16 states.
California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Montana, Michigan, Nevada, New Jersey, New York, Tennessee, Virginia, and Washington have all taken some action to reject prison gerrymandering.
However, these states have taken a variety of actions that affect redistricting in different ways. These differences are important, as they paint a picture of the road still ahead. No matter how you look at it, though, as of today, 47% of the country lives in a state that has formally rejected prison gerrymandering, adding to the growing body of evidence that it is time for the Census Bureau to count people at home.
State-level legislation effective for 2010
State-level legislation effective for 2020
State-level legislation effective for 2030
State-level non- legislative solutions for 2020
Expected state-level non-legislative solutions for 2020
State legislation that applies to local governments only
How many states have taken any action to avoid prison gerrymandering in state-level redistricting? 14 states.
This count includes the 11 states below who passed legislation to formally end prison gerrymandering at the state level, as well as states that have taken other actions to avoid, but perhaps not permanently end, prison gerrymandering.
For example, Pennsylvania did not enact legislation, but the redistricting committee acted on its own to count people at home rather than at the prison where they are incarcerated. It was the first state to address prison gerrymandering through its redistricting committee.
Similarly, Montana is poised to take action against prison gerrymandering. There, members of the redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and are urging the U.S. Census Bureau to end prison gerrymandering nationwide.
Massachusetts is also included here, even though it does not count people at home. The Massachusetts Redistricting Committee concluded that the state constitution prohibits that solution, instead, Massachusetts is poised to minimize the impact of prison gerrymandering as they did in 2010: by taking prison populations into account when redistricting to ensure that they will not be concentrated in a small number of districts. Massachusetts also passed a joint resolution in 2010 calling on the Census Bureau to provide data that counts incarcerated people at their residence, not the prison. Our analysis of the proposed draft maps shows even further progress in avoiding prison gerrymandering for the 2020 districts.
How many states have enacted legislation addressing prison gerrymandering at any level? 13 states.
In addition to the 11 states that have ended prison gerrymandering through legislation at the state level, there are 2 states that have enacted state-level legislation that applies only to local governments.
Michigan’s laws require counties, cities, and towns to exclude people in state prisons who are not residents of the city or county for election purposes. Tennessee, on the other hand, explicitly allows counties to exclude people in correctional institutions who cannot register in the county as voters, but does not require it.
How many states have solved prison gerrymandering during state-level redistricting? 12 states.
Here, Illinois and Pennsylvania are included, but not Massachusetts or Montana. While Massachusetts may avoid or mitigate prison gerrymandering by taking prison populations into consideration, it does not directly solve the problem. Regardless, neither Massachusetts nor Montana is included here because the redistricting processes in those states are still ongoing.
How many states have passed legislation ending prison gerrymandering at the state level? 11 states.
This includes all states that have passed or enacted legislation to end prison gerrymandering, and where that language is mandatory, meaning that redistricting must exclude prison populations or count them at home. These 11 states are California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington. All of these states are included in the above categories.
How many states will not prison gerrymander in their state districts in the 2020 redistricting cycle? 11 states, so far.
Eleven states will not use prison populations to pad political districts this cycle. Pennsylvania is included here because its redistricting committee acted on its own to count people at home for the 2020 redistricting cycle. However, Illinois is excluded because that legislation is not effective until 2025, in time for the 2030 redistricting cycle. Neither Massachusetts nor Montana are included here; while we expect both states to avoid prison gerrymandering, neither has formally finalized their plans yet.
So, how many states have ended prison gerrymandering? The answer is somewhere between 11 and 16 states, depending on how complete and futureproof their solutions are. On top of that, more than 200 impacted local governments, including counties, cities, towns, and school boards, have also acted to end prison gerrymandering. By comparison, in the 2010 cycle, only 4 states—New York, Maryland, Delaware, and California—had passed legislation and only 2—New York and Maryland—had implemented it. But as long as the Census Bureau continues to count incarcerated people in the wrong place, any state-based solution is a stop-gap measure. While the different approaches that states have taken may be important to know about, these differences should not obfuscate the larger trend towards ending prison gerrymandering.
For detailed information on the different types of solutions to prison gerrymandering, please see our solutions page and our legislation quick-reference chart.
Small, rural cities and counties are particularly susceptible to the impacts of prison gerrymandering. Low populations and a prison building boom have combined to distort local governance and representation in unanticipated ways.
Few places exemplify this problem as vividly as Wisconsin. Take Adams County, which is north of Madison, for example. After it redrew its lines in response to the 2010 census, this community had a district where incarcerated people made up 62.5% of its population. That means 38 residents here have the same political representation as 100 residents in any other district without a prison. It’s even worse in Waupun, where people incarcerated there make up 75.5% of a district, meaning every 25 residents in this district have the same political clout as 100 residents in other parts of the city.
However, no part of the state feels the distorting local impacts of prison gerrymandering quite like Juneau County. After the 2010 census, as the county looked to redraw its political lines, each district needed to have a population of roughly 1,200 residents to ensure equal representation. However, a new massive prison built recently in the county complicated their efforts to draw fair districts. The prison was so big that if leaders included it in a district, it would mean that twenty residents in that district would have as much political representation as 100 residents in districts without a prison.
John Wenum, a longtime county supervisor who oversaw the county’s redistricting efforts in 2011, recently explained to the Milwaukee Journal Sentinel, “(The incarcerated people) weren’t residents in the normal sense… it actually skewed things in some very significant ways.”
Leaders in Juneau County recognized this was a problem and wanted to fix it, so they sought guidance from the state on how to do that, but were told their hands were tied. They learned an outdated and confusing 1981 opinion from the state’s attorney general directs local governments to draw new district lines without excluding incarcerated people. It requires local governments to take part in prison gerrymandering, even though they didn’t want to. In the absence of other legislative or regulatory guidance, attorney general opinions hold significant legal weight, so Wenum and other leaders felt they had no choice. He told the Journal Sentinel, “The attitude here was ‘We’re not going to rock the boat, we’ll go with the flow.'”
The bad news is this opinion meant that for the last decade, some residents of the county have had considerably more say in the actions of their county government than their neighbors.
But the good news is state and local leaders in Wisconsin still have the opportunity to fix this problem for the next decade.
Attorney general opinions are powerful, but like local district lines, they are not set in stone. Wisconsin’s current attorney general, Josh Kaul, can issue a new legal opinion that updates the outmoded legal reasoning from 1981 and makes it clear that local governments can address prison gerrymandering, and there are plenty of reasons for him to do so.
As we speak, cities and counties across the country are beginning the process of redrawing their political districts for the next decade. If Attorney General Kaul takes action soon to issue a new opinion, he can help Wisconsin local governments avoid being stuck with another decade of districts distorted by prison gerrymandering.
Pennsylvania and Montana poised to become first states to end prison gerrymandering without legislation, a solution the Prison Policy Initiative has recommended in other states as well. New Jersey expands its law to cover congressional and local districts.
Redistricting has officially begun across the country, and over the last few weeks, several states have taken important steps to ensure people who are incarcerated are counted at their homes when new districts are drawn rather than in a prison cell.
The most significant of these victories occurred in Pennsylvania, where Rep. Joanna McClinton worked with advocates to add that state to the growing list of places that have ended the practice of prison gerrymandering when drawing legislative districts. This victory was particularly important because instead of relying on legislation, the independent Legislative Reapportionment Commission decided to end the practice on its own, making it the first state to do so. In urging other members of the commission to take this step, McClinton made the implications of the decision clear when she said, “We cannot wait another ten years. The time to correct this injustice is right now.”
The Keystone State may have been the first to address prison gerrymandering through its independent redistricting commission, but it likely won’t be the last. In Montana, a bipartisan consensus has formed on the need to fix the problem. Members of the state’s redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and urging the U.S. Census Bureau to end prison gerrymandering nationwide–a step we’ve advocated that the agency take for nearly twenty years.
The next few months are sure to be a whirlwind, but it is still not too late for state and local governments to ensure equal representation for their residents. As we’ve seen in Pennsylvania and Montana, states can use their redistricting commissions to solve this issue without legislation. Similarly, cities, counties, and school boards can use information contained in the recently released census data to avoid prison gerrymandering when drawing their new districts.
The redistricting decisions made over the coming weeks and months will have implications for the next decade. As of today, 40% of the country lives in a state, county, or municipality that has formally rejected prison gerrymandering. While new lines are drawn over the coming months, we’re committed to growing this number further.
More than 10 states have now passed legislation ending prison gerrymandering. However, each state has taken a slightly different approach towards achieving that goal, creating laws that sometimes differ in substantive (though not always substantial) ways.
We have created a new quick reference chart to help advocates and legislators sift through and compare some of these differences. Our chart includes the legislative history in each state, a statutory reference, a breakdown of which levels of government the law applies to, whether the law is mandatory or permissive, the different types of institutions covered, and how unknown or out-of-state addresses are dealt with.
Of course, our model legislation offers our best guidance for those looking to end prison gerrymandering in their own states.
Should the Census count boarding school students at their parents’ addresses or at their schools? Where should it count military personnel deployed overseas? To determine where to count people with atypical living situations, the Census Bureau relies on its “usual residence rule,” which instructs that people be counted where they “live and sleep most of the time.” However, application of the rule isn’t entirely consistent. While the Bureau treats boarding school students and deployed military members as residents of their home addresses (despite being away from those addresses for long periods of time), it counts incarcerated people away from their homes, as residents of the correctional facilities where they are detained. This discrepancy persists despite the fact that many incarcerated people are away from home for shorter periods than are boarding school students or deployed military personnel — and despite the fact that many people in jails and prisons do not actually live and sleep most of the time at the place where they happen to be detained on Census Day.1
Three-quarters of people in jails are released within three days
Consider our nation’s jails, where approximately 30% of incarcerated people are held in the United States on any given day. The American Jail Association has reported that 75% of people entering U.S. jails are released within 72 hours. Likewise, in 2019, the average stay for someone in jail was 26 days. (Importantly, there is no national figure on the median time served in jails, but it is likely far shorter than 26 days, given that many people spend only hours or a few days in jail, and because averages can be heavily skewed by the small number of people who remain there for long periods.) This data makes clear the error in the Bureau’s thinking when it comes to tabulating people in jails: the vast majority of people who happen to be in a jail on Census Day actually “live and sleep most of the time” somewhere other than that jail.
Many people in prison stay less than a year, and those who stay longer move around
Next, look at state prisons, where more than half of all people incarcerated in the United States are held. Although people generally stay longer in prisons than in jails, a study of the people released from state prison in 2018 showed that 20% had served less than six months and therefore did not live and sleep in prison most of the time. In addition, 42% of people released from state prison that year served less than one year.
Even among people serving longer sentences–those who do eat and sleep in a prison most of the time–it is quite often the case that they move around frequently while incarcerated. The Bureau of Justice Statistics has reported that approximately three-quarters of incarcerated people serve time in more than one prison facility (including approximately 12% who serve time in five or more facilities) before release. Thus, even for those with longer sentences, it often makes little sense to count them as residents of the particular facility where they are detained on Census Day.
Importantly, the existence of life sentences does not justify the practice of counting incarcerated people as prison residents either. For one thing, it is relatively rare for people to go to prison and never return home. Around 14% of people in prison are serving life sentences (including those serving “virtual” life sentences of 50+ years),2 including 3.6% serving life without any possibility of parole. In addition, even states like California, Delaware, and Nevada that have very high rates of life sentences among their incarcerated populations have made the choice to count incarcerated people (including those serving life sentences) in their home communities.
Inconsistencies across populations
Incarcerated people fall into an atypical category for Census purposes, but so do many other Americans. And inconsistencies in how the Census treats these various groups drive home why it makes no sense to count incarcerated people as permanent residents of prisons and jails. For example, snowbirds–people who travel seasonally between multiple residences–are counted wherever they determine they live and sleep most of the time, regardless of where they are on Census Day. As mentioned earlier, military service members who are deployed overseas (who are away for an average of nearly 8 months) are also counted at their home addresses. Consider the differences in how youth are counted: Boarding school students are counted at their home addresses, but children in juvenile correctional facilities are counted as residents of the places where they are detained (despite the fact that two-thirds of them stay for six months or less). As we have said before: incarcerated people are uniquely singled out to be counted in the wrong place.
As redistricting processes begin across the country, discussions about where to count incarcerated people are likely to arise in every state. When they do, we hope people will remember that there are many reasons to count incarcerated people at home: prison gerrymandering siphons political power from urban communities and communities of color, it dilutes local representation, and it creates an inaccurate picture of community populations generally. To top it off, many incarcerated people are actually away from their home addresses for shorter periods of time than other groups that are counted at home. It’s time to stop treating incarcerated people as residents of the particular facility where they are held on Census Day.
Census Day is April 1, the day used to determine who should be counted in the Census and where they should be counted. ↩
Of course, the fact that 14% of the people in prison are serving a life sentence is unconscionable and wildly out of step with the rest of the world. It is particularly concerning that the incidence of this type of sentence is increasing. However, it is important to note that the vast majority of people in prison are not serving life sentences and will return home. ↩
Connecticut becomes the 11th state to end the practice of prison gerrymandering.
May 27, 2021
For Immediate Release – Yesterday, Connecticut Governor Ned Lamont signed a bill ensuring that people in state prisons will hereafter be counted as residents of their home addresses when new legislative districts are drawn. The new law makes Connecticut the eleventh state to end the practice known as prison gerrymandering, after Illinois passed its own bill earlier this year.
The national movement against prison gerrymandering began in 2001 when the founders of the Prison Policy Initiative discovered that the sheer size of the prison population was combining with an outdated Census Bureau rule to distort political representation in this country. With the victory in Connecticut, over 35% of US residents now live in a state, county, or municipality that has formally rejected prison-based gerrymandering.
Most people in prison come from districts other than those in which they are incarcerated, and return to those home districts after release. Incarcerated people typically have strong attachments to their home communities, but no attachment to the community surrounding the prison. However, the Census Bureau counts all incarcerated people as residents of their prison cells. As a result, when states use Census counts to draw legislative districts, they inappropriately enhance the representation of people living in districts containing prisons.
Prison gerrymandering has a particularly significant impact on communities of color. The majority-white residents of seven state House districts in Connecticut have received significantly more representation in the legislature because each of their districts included at least 1,000 incarcerated African Americans and Latinos from other parts of the state. Eighty-six percent of the state’s prison cells are located in disproportionately white House districts.
“All districts in Connecticut send people to prison, but only some districts contain prisons,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “Counting incarcerated people as residents of the prison gives extra political representation to those districts, and dilutes the votes of everyone who does not live next to the prison. This new law will make legislative districts fairer by requiring people in prison be counted as residents of their hometowns.”
In enacting this legislation, the state has now caught up to the redistricting practices of the towns of Enfield and Cheshire, which both have large prisons within their borders and already refused to use the prison populations when drawing their local town districts.
Connecticut’s new law is the result of years-long efforts by Senator Gary Winfield and advocates, including Common Cause Connecticut the NAACP of Connecticut, and the Yale Law Peter Gruber Rule of Law Clinic. The law will go into effect for this year’s redistricting process, bringing an immediate end to the prison-driven distortion of representation in Connecticut.
The upcoming redistricting cycle means the clock is ticking for other states to end prison gerrymandering through legislation this year. But every state can still take action to prevent prison-driven election distortion. Legislation is not the only way to end prison gerrymandering before new districts are drawn: State and local redistricting officials can also minimize the impact of the Census’ prison counts by using the “group quarters” table that will be published with the usual redistricting data. The Census Bureau is publishing the table to make it easier for states to identify correctional facilities in their redistricting data.
Connecticut’s new law applies only to redistricting and unfortunately carves out a small exception for people serving sentences of life without the possibility of parole, who account for roughly 0.5% of the prison population. The legislation will not affect federal or state funding distributions.
On Wednesday, the Connecticut General Assembly passed SB 753, a bill that will strengthen state democracy by requiring that incarcerated people be counted as residents of their hometowns, not their prison cells, at redistricting time. If Governor Ned Lamont signs the bill, it will make Connecticut the eleventh state to end the practice known as prison gerrymandering.
This week, the Editorial Board of The New York Times called on states and the federal government to end prison gerrymandering, the practice of drawing legislative districts around large prisons and counting the people inside as legitimate constituents. As the Editorial Board remarked, this practice
“makes no sense, because virtually everyone who goes to prison comes from somewhere else, and almost all will return there after being released. While they are behind bars, they can’t vote, nor do they have any attachment to the local community or its elected officials…The result is one of the more persistent and pernicious distortions in the redistricting process.”
The bad news is that with redistricting just around the corner, policymakers are running out of time to prevent another 10 years of prison-driven election distortion. The good news is that momentum is rapidly building to fix the problem in several local, state, and federal lawmaking bodies, as well as in the national media:
Connecticut, Michigan, Rhode Island, and Missouri are all considering bills that would require state and local redistricting officials to count incarcerated people as residents of their home addresses.
Federal bill H.R. 1, the “For the People Act,” contains clauses that would end prison gerrymandering nationally — forever — by requiring the Census Bureau to change how it counts incarcerated people. As the NYT editorial correctly notes, this is by far the most efficient solution to prison gerrymandering. However, even if H.R. 1 passes this year, it won’t fix the problem until the 2030 Census.
State and local governments are also considering solutions that don’t require legislation. Cities and counties can simply choose to exclude prison populations when they draw new legislative districts this year, a solution that hundreds of local governments have already chosen. Meanwhile, state redistricting officials can divide up their prison populations among multiple districts to ensure that no one district claims a disproportionate number of incarcerated people.
If you live in a state that still hasn’t taken action, you may wonder what the options are for ending prison gerrymandering where you live this year. Again, there is good news and bad news. Most states have run out of time to introduce new bills this year that would take effect before the 2021 redistricting process begins. But all states still have time to limit prison gerrymandering this year through non-legislative means (the solution described in the fourth bullet above). And the stakes have never been higher. In the words of the Times Editorial Board: “A healthy representative democracy needs an accurate picture of who lives where in order to allocate the proper number of lawmakers to represent their interests.”
Prison gerrymandering is poised to continue in most states for another 10 years, unless states act immediately to fix the problem before the fast-approaching redistricting process. Fortunately, even in the many states that have run out of time to pass new laws before redistricting starts, there are still two solutions left for local and state districts.
Boston Globe opinion columnist Abdallah Fayyad published a highly-readable oped this month about prison gerrymandering, in which he explains the problem and the urgently-needed solution for local governments: “Remove prisons from redistricting data prior to creating new legislative maps at the local level.”
Meanwhile, state legislators “should ensure that prisons don’t meaningfully distort where [state] district lines are drawn.” This requires map drafters to avoid grouping prisons together into single districts and making sure that districts that do contain prisons have enough actual local residents to meet population requirements.
Fayyad’s oped targets policymakers in Massachusetts, but the solution he explains could work in virtually any state. Most states contain cities and counties whose governments have been wildly distorted by prison gerrymandering, and the Census Bureau is making it easier than ever for redistricting officials to fix the problem themselves. (We’ve previously explained the solution Fayyad offers in more detail.)
Because the oped ran in the widely-read and respected Boston Globe, advocates in other states may find this a very useful piece to distribute as a concise explainer about ending prison gerrymandering this year.
Fayyad also does an excellent job explaining the injustice of prison gerrymandering. As he puts it:
“Representatives from [prison] districts feel compelled to cater to the needs of only a minority of their constituents if they wish to be re-elected…This is not because these representatives are inherently sinister actors — though not responding to the needs of incarcerated constituents is a failure of leadership and the duty to serve a district in its entirety — but because the system encourages elected officials to ignore their prison populations.”
It’s important to end prison gerrymandering, as Fayyad explains, in order to move away from a system in which people in prison are invisible and ignored, and towards one in which they have genuine representation in houses of government.