In its editorial, the Post notes that the Census Bureau’s practice of counting incarcerated people as residents of prisons is “a form of gerrymandering.” It explains that this practice gives extra political power to communities that host prisons at the expense of everyone else. The paper also points out that the Bureau fails to count incarcerated people the same way it does truckers, boarding-school students, military personnel, and others away from home on Census Day.
Some may be surprised that a paper like the Post, which has often taken conservative stances on issues related to crime and incarceration, would join the chorus of voices that have called for an end to prison gerrymandering. However, a closer examination of the history of this issue (including this 15-state summary of editorials and news articles presented to the Census Bureau in 2014) shows it has long received support across the country from both sides of the political spectrum, including.
Legislation ending prison gerrymandering often garners bipartisan support in states that fall across the full spectrum of party control, from Massachusetts, to New Jersey, to Tennessee.
Redistricting is a notoriously rancorous process, so how has addressing prison gerrymandering managed to avoid being bogged down in partisan political fights?
On a practical level, elected officials — particularly in local government — have experienced the distortive effects of prison gerrymandering firsthand. And, as a matter of principle, the New York Post put it bluntly and eloquently when it said the practice is “fundamentally wrong, and at odds with the Census’ duty to provide a true picture of the nation.”
In closing its editorial, the Post said, “(prison gerrymandering) belongs at the top of the list” of issues the Census Bureau should address in the 2030 count. We disagree with many of the stances the paper has taken on many issues, but on this one, they took the words right out of our mouths.
Last week, the Census Bureau wrapped up its first public comment period on ways it can improve the next Census. It was our first opportunity of the decade to make the case that the Bureau should finally end prison gerrymandering nationwide in 2030. Prison gerrymandering is a problem created by the Bureau counting incarcerated people as residents of prison cells rather than their home communities. Then, when states use those Census counts to draw legislative districts, they unfairly give people who live closest to prisons a louder voice in government, to the detriment of everyone else. Our official comments gave the Bureau plenty to reconsider.
1. State and local governments are rejecting the Bureau’s flawed way of counting incarcerated people
During the 2010 redistricting cycle, only two states adjusted their redistricting data to count incarcerated people at home. In 2020, 13 states1 counted incarcerated people at home. And four additional states took other steps to reject prison gerrymandering in redistricting.2 And hundreds of local jurisdictions have made changes, in the absence of state-led solutions, to address this problem.3
In total, roughly half of the US population now lives in a place that has taken action to mitigate the harms of prison gerrymandering. This number will almost certainly grow by 2030. Each of these places has had to spend additional time and money to fix this problem that the Census Bureau created and could easily resolve.
The emerging consensus on this issue is clear and serves as powerful evidence that it is time for the Census Bureau to count incarcerated people at home so the data it provides state and local governments meets their needs.
2. The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration
The Census Bureau relies on its “residence rule,” which says that people should be counted where they eat and sleep most of the time, to justify counting incarcerated people as residents of prison cells. However, the Bureau’s interpretation of this rule has evolved over the decades to keep pace with a changing society. But the way they count incarcerated people is still stuck in the 1700s.
On any given day, 30% of incarcerated people are held in jail. The American Jail Association has reported that 75% of people entering U.S. jails are released within 72 hours. The average stay for someone in jail is 26 days. (Importantly, the median time served in jails is likely far shorter than 26 days, though no precise figures exist.)4 As a result, even a brief jail stay of just a few days had repercussions that were felt for a decade.
Prisons tend to hold people serving longer sentences than those in jails. Regardless of sentence length, though, people in prisons don’t reside (eat and sleep most of the time) at the particular correctional facility they happen to be at on Census Day. People counted at a state or federal prison on Census Day likely have not been at that facility very long, and will likely to leave it soon:
75% of people serve time in more than one prison facility.5
12% of people serve time in at least five facilities before returning home.6
Most people incarcerated in New York State have only been at their current prison for seven months.7 (Other states report similar figures.8)
3. Communities of color are disproportionately harmed by prison gerrymandering
The Bureau’s decision to count incarcerated people as residents of a prison disproportionately harms communities that are already hit hardest by incarceration and marginalized because of their race, gender, sexual orientation, class, and other defining characteristics. The Bureau’s own data shows incarceration rates are not even across all populations: Black people, Native American people, Hispanic/Latinx people, and people of two or more races are disproportionately incarcerated.9
The Census Bureau already has a stubbornly persistent problem of undercounting these disadvantaged communities.10 By counting incarcerated people from these communities as residents of prison cells, rather than their homes, the Bureau exacerbates this existing problem by further undercounting these areas.
4. Incarcerated people are treated differently than others in similar situations
Counting incarcerated people at home would align residence rules with how the Census Bureau counts others in similar transitory situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility.
The most glaring example of this double-standard involves kids who are away from home on Census Day: Kids at boarding schools are counted at their parents’ addresses, while kids who have even a short stay at a juvenile correctional facility are counted at the location of the facility.
The Census Bureau uses the length of time someone spends in a single location as a starting point for applying the residence rule, but it often takes other factors into account. For most people who are away for long times, the Bureau recognizes the importance of family and community ties when it counts them at home (e.g., truck drivers, boarding school students, Congress, military personnel) but fails to apply the same thinking to incarcerated people.
What’s next?
Once it reviews them, the Bureau will eventually publish all submissions it received during this public comment period. However we don’t know exactly when that will be. While we wait, we’re collecting comments from other organizations on our website to make them available to stakeholders and decisionmakers earlier. If your organization submitted a comment calling for the Bureau to end prison gerrymandering, send it to us and we’ll add it to the collection for 2022.
As we work to end prison gerrymandering nationwide, state governments should continue to move forward with their efforts to end the practice, as well. For most, this means collecting data on where people in their prisons call home or passing legislation to require state and local redistricting bodies to count incarcerated people at home when they draw new district lines. Taking these steps will put additional pressure on the Bureau to change its policies (and, in the event the Bureau doesn’t make this change, ensure these state and local governments are ready to fix this problem on their own).
This public comment period is the first step in what will be a lengthy process, but we’re in it for the long haul, and momentum is on our side.
Footnotes
California, Colorado, Connecticut, Delaware, Maryland, Montana, Nevada, New Jersey, New York, Pennsylvania, Rhode Island, Virginia, and Washington State. ↩
Illinois passed legislation to count people at their home address for redistricting purposes started with the 2030 cycle. Massachusetts works around the Census’ prison data to ameliorate the impact of prison gerrymandering on the state’s districts and has officially requested that the Bureau count incarcerated people at home. Michigan and Tennessee have passed state legislation addressing local governments ending prison gerrymandering but the legislation has not yet been extended to state districts. A full summary of how different states are addressing prison gerrymandering is available here. ↩
In addition to the hundreds of governments that have avoided prison gerrymandering after the 2000 and 2010 Censuses we identified an additional 21 local governments scattered across 11 states that started doing so after the 2020 Census despite those states continuing to use unadjusted data for state-level districts. ↩
Among formerly incarcerated people surveyed by the Bureau of Justice Statistics “threequarters of former inmates had served time in more than one prison facility; nearly 1 in 8 had served time in 5 or more prison facilities before their release.” ↩
Some of the survey respondents were moved through as many as 15 facilities. ↩
The next Census is still eight years away but the work to prepare for it has already begun, and so have our efforts to convince the Census Bureau to finally count incarcerated people as residents of their homes instead of prison cells. Earlier this month, the Bureau asked for public comment on areas it can improve upon in the 2030 Census. This is our first chance to ask the Bureau to build on its progress during the 2020 Census, and finally end this problem nationwide. And there are good reasons for it to do so. Prison gerrymandering is a relatively new problem, created by exploding prison populations and an outdated way that the Census Bureau counts incarcerated people, and it creates significant challenges for the rapidly growing list of state and local governments working to fix this problem.
The problem
The Bureau’s practice of counting incarcerated people as residents of a prison, rather than at their homes shifts political representation to people who live near correctional facilities, at the expense of residents who live further away. (Importantly, this does not impact funding distribution.) In doing this, the Census Bureau gives people who live close to prisons a louder voice in government and the decisions made in their state and community.
A bit of history
We’re often asked, “If the Census Bureau has counted incarcerated people this way since the country was founded, why change now?” The simple answer is: the nation’s 40-year failed experiment with mass incarceration changed everything.
The prison boom began in the 1970s, but its impact on the 1980 Census was modest from a national viewpoint. In fact, the Bureau didn’t even mention incarcerated household members on the census form until the 1990 Census. But by 2000, the incarceration rate was more than four times higher than two decades earlier, and this problem was unavoidable. State and local officials and advocates began to notice that areas containing prisons began to “grow”, and so did their influence in government.
The Bureau’s application of its “residence rule” has failed to keep up with an evolving country and its needs
The way the Census counts incarcerated people is also out of step with how it applies the residence rule to other people in transitory living situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility. Kids who live at boarding school are counted at their parents’ address while kids who have a short stay at a juvenile correctional facility are counted at the location of the facility.
The amount of time spent in a single location is a starting point, not an end-all-be-all for how the Census Bureau applies its residence rules. Most people who are away from home on Census day — even if they’re gone for a significant amount of time — are counted at home. The Bureau does this because it recognizes a person’s ties to their home and community are what really define a residence. It relies on family and community ties to count truck drivers, boarding school students, Congressional members, and military personnel at home. But the Census Bureau fails to apply the same rules to incarcerated people.
The Bureau is failing to keep up with evolving redistricting data needs
State and local governments — the most important redistricting data users — recognize how outdated the Census Bureau’s methodology is. During the 2000 redistricting cycle, many counties and municipalities that contained large prisons adjusted the data they received from the Census Bureau in order to avoid prison gerrymandering when drawing district lines. During the 2010 redistricting cycle, two states and over 200 local governments had taken action to fix this problem; and by the 2020 cycle, an additional 11 states had joined them. Altogether, nearly half of the country now lives in a city, county, or state that has taken on the burden of correcting the data it received from the Census to use in redistricting.
The Census Bureau has a duty to solve this problem. It is required to provide data that is fit for use in redistricting, a standard it is not meeting. While many states counties, and cities have taken it upon themselves to fix this problem, the Census Bureau, is the only agency that can provide a complete solution, and can do so far more efficiently than state or local governments, which often run up against roadblocks that the Census Bureau would not. For example, counting people incarcerated across state or county lines, matching Census race and ethnicity categories, and counting people in Bureau of Prisons facilities — an agency that has refused to cooperate with states. Additionally, there are states like Massachusetts where the state constitution prohibits unilateral action, Massachusetts explained in their 2014 resolution urging the Census Bureau to change the way it counts incarcerated people. States have shown incarcerated people can be counted at home, but the Census needs to take this proof of concept and apply it to its own count.
Looking to 2030
As the Census Bureau begins to plan for 2030, there are good reasons for it to change how it counts incarcerated people. By counting people as residents of a prison cell, instead of their home communities, prison gerrymandering reduces the say that most communities — particularly those hit hardest by mass incarceration — have in their government. The Bureau’s interpretation of its residence rules is out of date and treats incarcerated people differently than many other similarly situated groups. And finally, the Bureau is falling behind the emerging consensus on this issue; forcing hundreds of local governments and over a dozen states to take ad hoc steps to correct the redistricting data on their own. It is time for the Census Bureau finally count incarcerated people at home in the 2030 Census.
Now is our first opportunity to make our voice heard. We hope you’ll consider doing so.
How to submit your comments to the Census Bureau
This public comment period is the first chance members of the public have to call for an end to prison gerrymandering nationwide in the 2030 Census. As the Census Bureau explains:
As part of the planning efforts, the public is invited to share feedback on how the Census Bureau can improve the public’s experience during the 2030 Census. With this input, the Census Bureau aims to better reach and count historically undercounted people, overcome challenges and encourage everyone to respond to the 2030 Census. Public input is needed now so it can inform the Census Bureau’s decisions on the initial operational design, along with the findings of dozens of research projects underway.
You can send your comments in two ways:
Email the Census Bureau at DCMD.2030.Research@census.gov. Please include “FRN Response” in the subject line.
Go online to the online submission form. Then, click the green button “Submit a Formal Comment”.
Comments are Due November 15th. Note: The Census Bureau asks that you clearly identify your comment with one of their provided topic choices. I suggest using “Reaching and motivating everyone” for comments on ending prison gerrymandering, but if your comment delves into the weeds of technical aspects of the count, you might also consider “New data sources”.
What’s coming up next?
Right now, the Census Bureau is in the early stages of planning for the 2030 Census. We expect the Bureau to focus deeper on issues related to prison gerrymandering in the next few years, but the problem cannot be ignored in the meantime.
Before this November 15 deadline, the Prison Policy Initiative will publish additional resources like this fact sheet; and we encourage you to check out our pathfinder guide to resources available on our site. And in the year ahead you can expect us to publish other fact sheets and explainers to prepare for the next stages of this effort.
Last week, Washington Gov. Jay Inslee signed a bill that strengthens the state’s anti-prison gerrymandering law by making it apply to city, county, and other local governments when they redistrict. Washington was the fifth state to end the practice in state legislative and congressional redistricting. By extending this law to local governments, Washington is now among the gold standard states that have ended prison gerrymandering.
Prison gerrymandering occurs because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. Most people in prison don’t come from communities where they are incarcerated and return to their home community after release. Because of their small size, local governments feel some of the most dramatic impacts of prison gerrymandering. When a city or county includes a prison’s population when redistricting, it gives residents who live closest to the prison significantly more political clout and diminishes the residents’ voices in other districts.
Under the law, when new census population data is released every ten years, the state redistricting commission will adjust the data to count incarcerated people in their home communities rather than where they are incarcerated. Local governments will then use this adjusted data to draw their new district lines rather than the data provided directly by the Census Bureau. The legislation applies only to redistricting and will not affect federal or state funding distributions.
Prison gerrymandering is a problem that can best be solved if the Census Bureau changed its policy to count incarcerated people as residents of their home communities rather than a prison cell. Roughly half of all residents of the United States now live in a city, county, or state that has addressed prison gerrymandering. The actions by Washington to strengthen its anti-prison gerrymandering laws add to the growing consensus that the Census Bureau should end this unjust practice once and for all.
Gov. Dan McKee signed into law new legislative districts that count many incarcerated people in their home districts.
February 23, 2022
Another state has moved to address prison gerrymandering. Last week, Rhode Island Governor Dan McKee signed into law new legislative and congressional districts that change how the state counts incarcerated people. Rhode Island is the second state whose redistricting commission has taken the initiative to address prison gerrymandering (after Pennsylvania last year). Eleven other states have also ended the practice through legislation. All told, roughly half of all U.S. residents now live in a state, county, or municipality that has rejected prison gerrymandering.
Prison gerrymandering is a problem created because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. 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. As a result, when states use Census counts to draw legislative districts, they inappropriately enhance the representation of people living in districts containing prisons.
However, unlike other states that have taken action, Rhode Island did not completely end prison gerrymandering. Instead of counting all incarcerated people at home when drawing new districts, the redistricting commission counted only people who, on Census Day (April 1, 2020), were either not yet sentenced or had less than two years remaining on their sentence. As a result, the state’s new legislative maps count only 44% of incarcerated people in their correct districts. (The change will not affect federal or state funding distributions.)
“These new districts are an important step in the fight to end prison gerrymandering in Rhode Island, but the work is not over. Lawmakers should finish the job of ending this injustice by passing legislation that will ensure the state counts all incarcerated people in their home districts when new districts are drawn in ten years,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “Rhode Island’s actions are yet another reason for the Census Bureau to join the growing consensus on the issue and count incarcerated people as residents of their homes, not their prison cells.”
Prison gerrymandering has a particularly significant impact on communities of color in Rhode Island, where black people are incarcerated at a rate nine times higher than non-Hispanic whites, and Latinos are incarcerated at a rate three times higher than non-Hispanic whites.
The national movement to end 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. Since then, more than a dozen states and over 200 local governments have taken action to address this problem.
It is almost time to add Rhode Island to the growing list of states that have taken steps to end prison gerrymandering. Last week, the state’s redistricting commission voted to count some of the people incarcerated at the Adult Correctional Institute (ACI) in their home districts instead, when drawing state legislative and congressional districts. The bipartisan vote of 15-1 showed overwhelming support for what we hope is a first step toward ending prison gerrymandering in Rhode Island.
Although a small step, it is undoubtedly a step in the right direction. Over the last two decades, advocates on the ground have led the charge to end prison gerrymandering, and this change represents the first concrete step taken by the state to draw districts that accurately and fairly count incarcerated people. That is something worth celebrating.
However, the work to end prison gerrymandering in Rhode Island is far from over. Rather than reallocating all people incarcerated at ACI back to their home communities, the state will only reallocate people who were either not yet sentenced on Census Day or people expected to be released by April 1, 2022. That means only 44% of people incarcerated at ACI will be counted in their home districts. It is an unfortunate and arbitrary choice to count such a small portion of people in their home community. The choice is even more frustrating when you remember state law says a person doesn’t stop being a resident of their home district when they are incarcerated. That is true whether someone is incarcerated for a day or a lifetime.
It’s imperfect progress, so what’s next?
The first step is finalizing the new maps in the state. In the coming weeks, the commission will produce its proposals. Then, this spring, the legislature will give the maps final consideration. After that, legislators should look to build upon and solidify the progress that has been made by passing legislation that ensures that all incarcerated people in the state are counted in their home communities for the purposes of drawing district lines in the coming decades.
Ultimately, though, the piecemeal actions taken by the Rhode Island Redistricting Commission are further evidence that the best way to end prison gerrymandering is for the Census Bureau to change the way it counts incarcerated people to end prison gerrymandering nationwide. Now that yet another state has joined the emerging consensus on this issue, there is even more reason for the Bureau to count incarcerated people at home in the first place.
