Changes to federal race & ethnicity standards give states an opportunity to improve data for prison gerrymandering reform

States should consider new race and ethnicity standards when preparing to implement prison gerrymandering reform in the 2030 redistricting cycle

by Danielle Squillante, April 29, 2024

The U.S. Office of Management and Budget (OMB) recently announced changes to how federal agencies will collect race and ethnicity data, the first change to these rules since 1997. We and other civil rights groups welcomed these changes because they will present a more nuanced and accurate depiction of the racial and ethnic diversity of the country. The Census Bureau will be following these new standards for the 2030 Census, and so these changes should also prompt states — both those that have ended prison gerrymandering and those that are considering taking that step — to change how they track race and ethnicity data for people in their prisons.

What are the changes and why do they matter?

The new rules do two primary things to the Census count:

• Combine race and ethnicity categories into one question: This better aligns with the way people identify themselves — for example, it gives people the option to choose Latino or Hispanic as a racial category, rather than just ethnicity.
• Add Middle Eastern and North African (MENA) as a new racial category: Previously people of Middle Eastern or North African descent were aggregated into the white category against their wishes.

How will this impact prison gerrymandering reforms in states?

These changes present some challenges — and opportunities — for states that have ended, or are considering ending, prison gerrymandering.

Prison gerrymandering is a problem the Census Bureau created by counting incarcerated people as residents of their prison cells rather than in their home communities. This artificially inflates the populations of areas that contain prisons, giving them additional political clout when state and local governments use this Census data to draw new district lines every ten years. In states that have ended prison gerrymandering, state officials adjust their redistricting data to count people in prison at their pre-incarceration address, giving a more accurate picture of the area’s population and more equal representation in government.

To address prison gerrymandering, states take the data provided by the Census Bureau and cross-reference it against data collected by their Department of Corrections to reallocate incarcerated people back to their home communities before they draw new political boundaries. Importantly, when drawing these new maps, they not only consider the number of people in a district, but also who the residents of that area are. This is largely to comply with state and federal Voting Rights Acts and constitutional protections to ensure the ability of Black communities — and other racial and ethnic groups — to elect representatives of their choice.

In an ideal world, states and the Census Bureau would track race and ethnicity data in the same way. It would make it easier and more efficient for states to match Census data to their state data when adjusting redistricting data counting incarcerated people in their home communities. However, as the National Conference of State Legislatures reported last year, that’s not the case. Of the states that ended prison gerrymandering after the 2020 redistricting cycle, only one state’s Department of Corrections used the same race and ethnicity categories as the Census Bureau.

States that currently track race and ethnicity differently than the Census Bureau, will still have to do the work to make their data and the Bureau’s data compatible. However, these states should consider these Census changes as an opportunity to improve their data collection and make it more compatible with the Bureau’s data. Here’s how:

• States should reform how they collect race and ethnicity data to conform with the updated Office of Management and Budget standards to make comparing data easier for reallocation purposes;
• States should provide opportunities for incarcerated people to self-report race and ethnicity data whenever possible to ensure accuracy in the data they collect. When that is not possible, at the very least the Department of Correction should disclose how that data is collected.

Regardless, these new standards do not stand in the way of ending prison gerrymandering.

Roughly half of all U.S. residents now live in a city, county, or state that has ended prison gerrymandering, with more almost certain to join them before the 2030 redistricting cycle. That raises the important question: Instead of forcing states to keep up with the Bureau’s changing data collection and reporting, why not finally change how it counts incarcerated people in 2030?

Federal judge’s ruling clears the way for Louisiana to end prison gerrymandering without waiting until 2030

U.S. District Judge Shelly Dick said current maps deprive Black residents of political representation.

by Mike Wessler, March 27, 2024

Last month, U.S. District Judge Shelly Dick struck down Louisiana’s state legislative districts, noting that they unfairly deprived Black residents of political representation in violation of the Voting Rights Act. She ordered the state to draw new legislative maps to resolve this issue.

Importantly, in her ruling, Judge Dick noted how the over-incarceration of Black people harms their ability to engage with their government, saying:

“The preponderance of the evidence proved that Black voters’ participation in the political process is impaired by historic and continuing socio-economic disparities in education, employment, housing, health and criminal justice.”

While the judge did not specifically cite prison gerrymandering in her ruling, it is an issue that makes the inequalities at the heart of the case even worse. Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people as residents of the wrong place — a prison cell — rather than their actual homes. When state governments then use the Bureau’s data to draw new legislative maps during their redistricting process, they inadvertently give residents who live closest to prisons greater political clout at the expense of everyone else.

When the Louisiana legislature convenes to draw new legislative districts to comply with the Judge’s order, its maps should address the injustice of prison gerrymandering.

Prison gerrymandering diminishes Black political representation in Louisiana

Louisiana is the incarceration capital of the world, locking up not only a greater share of its residents than any other state in the country but also more than any nation on the planet. So it should come as no surprise that prison gerrymandering has stark consequences in the state.

A unique dataset, which we gathered with the help of Louisiana-based Voice of the Experienced and Redistricting Data Hub, gives us a more precise look at how this plays out.¹ Most importantly, we can see that incarcerated people come from all over the state. This matters because under the current flawed way the Census Bureau treats incarcerated people, the 26,000+ people in state custody are counted in just a handful of state prisons, dramatically inflating the population of those communities — and, with it, their political clout.

This data shows that prison gerrymandering robs nearly every state legislative district and its residents of some of their political voice. This political clout is then given to those districts that contain prisons.

While nearly every community is harmed by prison gerrymandering, that pain is not felt equally. Louisiana has stark racial disparities in its prisons. Black residents account for 32% of the state’s population, but they account for 66% of the people in state prisons.

With such dramatic disparities in incarceration in the state, it is clear that prison gerrymandering is undermining Black political representation in Louisiana.

Prison gerrymandering gives two majority-white districts a particularly loud voice in government

Because of prison gerrymandering, people in Louisiana who happen to live close to state prisons get more political clout at the expense of every other resident of the state.

In Louisiana, two majority-white districts particularly benefit from this dynamic. First is House District 22, which contains a federal prison in Pollock. The other is House District 18, home to the Louisiana State Penitentiary, better known as Angola Prison.

In each of these places, incarcerated people make up more than 11% of the district population. As a result, 89 actual residents of these districts have the same political clout as 100 residents of any district in the state without a prison.

Addressing prison gerrymandering will correct this imbalance and ensure that residents of these districts get the same voice in government — no more and no less — as every other resident of the state.

Louisiana’s embrace of failed, punitive criminal legal system policies shows why prison gerrymandering matters

At its core, the failure of Louisiana to address prison gerrymandering is an issue of political representation. However, this isn’t simply an academic exercise about ensuring everyone has an equal voice. It has real and dramatic consequences. To see this, you have to look no further than the recently ended special session of the Louisiana legislature.

The state’s new governor called the special session under the guise of focusing on crime despite the evidence that crime is at its lowest levels in roughly 60 years. During the session, lawmakers passed a slew of regressive policies that will increase prison populations and make the criminal legal system more punitive, including effectively eliminating parole, trying more young people as adults, and expanding the use of the death penalty.

It is reasonable to conclude that lawmakers who benefit politically from prison gerrymandering and the state’s large prison population have a strong incentive to protect and even grow this advantage by supporting the type of punitive criminal legal system policies passed during the special session. On the other hand, lawmakers who represent districts that have large numbers of residents in state prisons are more likely to seek solutions to the root causes of incarceration, such as poverty and untreated mental health and substance use issues. This conclusion was borne out during the special session when the two lawmakers who represent House Districts 22 and 18 — and benefit most from prison gerrymandering — supported all of the new draconian changes to the criminal legal system.

Addressing prison gerrymandering will help to disrupt this incentive toward bad policy and ensure every resident gets an equal say in government.

Now is the time for Louisiana to end prison gerrymandering

Eighteen states — including “red” states like Montana, “blue” states like New York, and “purple” states like Maine — have recognized the injustice of prison gerrymandering and rejected the flawed Census data. Instead, they took it upon themselves to correct the redistricting data to provide more equal representation to their residents. Progress on this issue has been so swift that the staunchly bipartisan National Conference of State Legislatures recently called the movement to end prison gerrymandering “the fastest-growing trend in redistricting.”

Louisiana should join this rapidly growing list.

We don’t yet know when the legislature will take action in response to the court ruling, and the judge did not set a clear timeframe for when they must act. However, when they do, their maps should address the problem of prison gerrymandering. Failure to act would mean that residents of the state — particularly Black residents — will continue to have their political representation diminished until at least 2031.

What the ten worst prison gerrymanders of the 2020 redistricting cycle tell us about how the problem is changing

New analysis shows that the Census’ flawed way of counting incarcerated people is increasingly harming rural areas — and both political parties.

by Aleks Kajstura and Mike Wessler, February 26, 2024

The 2020 redistricting cycle was a turning point in the effort to end prison gerrymandering. Fixing the Census Bureau’s flawed way of counting incarcerated people was once considered a niche issue, but after 2020 is now “the fastest-growing trend in redistricting,” according to the fiercely bipartisan National Conference of State Legislatures.

We previously looked at the experiences of states that have addressed prison gerrymandering after the 2020 Census. We wanted to also see what happened in states that haven’t fixed this problem to see what it tells us about how this issue plays out across the country as we look toward the 2030 count.

To do this, we examined the ten state legislative districts¹ where, according to Census data, people held at correctional facilities account for the largest percentage of the district population.

These ten worst prison gerrymanders in the nation show the problem is increasingly harming residents of rural states and defying some of the preconceived notions about partisan impacts.

Rural states bear the burden of the Census Bureau’s error

This analysis shows that prison gerrymandering is a problem increasingly harming residents in some of the most rural states. While some might be tempted to chalk this up to the political dynamics of those states — we explain later in this piece why this seems increasingly unlikely — the truth is this is likely more a reflection of the Census Bureau shifting its responsibilities to over-burdened state governments and the series of trade-offs this forces states to make.

Prison gerrymandering is a problem created by the Census Bureau. Every ten years, it erroneously counts incarcerated people at the location of the facility they happen to be on Census Day rather than in their home communities. When state and local governments use this data for redistricting, they inadvertently give communities that contain prisons greater political clout at the expense of everyone else.

If states want to draw fairer districts by ending prison gerrymandering, they have to take on the task of fixing the flawed Census Bureau data to count incarcerated people at their true homes. This takes time, effort, and money, three rare and valuable commodities during redistricting.

To be clear, fixing prison gerrymandering is not a hugely expensive endeavor.² But state budgets are a series of trade-offs and compromises. If lawmakers have the chance to spend even a few thousand dollars on direct services to their residents or can use that money to fix the Census Bureau’s mistake that caused prison gerrymandering, which do you think they’re likely to choose?

The experience of Montana, a state that has addressed prison gerrymandering despite its comparably small budget, shows the budgetary tricks or luck that states have to rely on to fix this Census Bureau mistake. During the 2020 redistricting cycle, commissioners in that state were unanimous in their desire to address prison gerrymandering, but it almost did not happen because they didn’t have the money to adjust the Census redistricting data to count incarcerated people at home. Ultimately, they could only implement this change because COVID-related restrictions meant that they could use money initially allocated for travel instead to end prison gerrymandering.

Some might be tempted to ask, “Why should the Census Bureau take on this effort instead of the places that want to change the data?” The simple fact is that the Census Bureau has a duty to provide states with redistricting data fit for use — a duty that the emerging consensus among states shows they are not meeting. State and local governments have been loud and clear, they want the Bureau to fix this problem.

Roughly half of all U.S. residents now live in a city, county, or state that has ended prison gerrymandering, with more almost certain to join them before the 2030 redistricting cycle. The Bureau’s stubborn refusal to change how it counts incarcerated people is a liability for a rapidly growing swath of the country and a disincentive for more places to join their ranks.

Additionally, it is important to remember that apart from any concerns about taking on additional burdens and redistricting time, states can only partially solve the problem. Prison gerrymandering is a national problem that crosses jurisdictional boundaries. No city, county, or state can completely fix this issue on its own. Only the Census Bureau can fully solve this problem nationwide.

Prison gerrymandering is not a partisan issue

Redistricting is notoriously contentious, with politicians working to gain leverage for their party in state houses.

While some have sought to paint the effort to end prison gerrymandering as a partisan tool in those fights, this analysis firmly busts that myth. These data show that both parties are harmed by prison gerrymandering.

Of these ten districts, six are districts controlled by Democrats, while Republicans control four. Notably, the district most distorted by a prison, New Hampshire’s Merrimack 17, is currently held by a Democrat. Prison gerrymandering distorts this district so severely that residents there have twice the political clout of residents of any other district in the state without a prison.

This is the latest piece of evidence that prison gerrymandering reform regularly defies traditional political expectations:

• More than 200 rural city and county governments — many in some of the most conservative parts of the country — have recognized how prison gerrymandering harms their residents and have taken it upon themselves to fix Census data to address prison gerrymandering.
• Deep “blue” states like California, “purple” states like Maine and Pennsylvania, and deep “red” states like Montana — where prison gerrymandering-reform legislation received wide bipartisan support — have all taken action to address the problem.
• In Maryland, the first state in the nation to address the problem, the sponsor of the bill ending prison gerrymandering was a main beneficiary of the Census Bureau’s flawed way of counting incarcerated people but championed the measure anyway, saying, “To me, it is just a fair way to count.”

This analysis makes clear that neither political party is a guaranteed winner in prison gerrymandering. But, the clear loser in prison gerrymandering is every resident who doesn’t live in a legislative district with a prison.

What does this data tell us about 2030?

The 2030 Census may seem far away, but the Bureau has already begun planning for the count. It will likely decide where to count incarcerated people in the next two to three years.

This new analysis, which shows that the burden to correct flawed Census data increasingly falls on rural states and that prison gerrymandering is an issue that defies traditional partisan assumptions, should weigh heavily on their decision.

As we wait for the Census Bureau to decide, state lawmakers — particularly in these states with the worst prison gerrymanders — should start laying the groundwork to fix this problem should the Bureau fail to act. This means passing legislation now to ensure the state has the data and expertise it needs to successfully implement reform to end prison gerrymandering during the 2030 redistricting cycle.

A mid-decade opportunity to end prison gerrymandering in Michigan and Wisconsin

Courts in Michigan and Wisconsin have stuck down their legislative maps, providing a rare mid-decade opportunity to immediately end prison gerrymandering.

by Mike Wessler, January 17, 2024

While most people around the country were focused on the festivities of the holiday season, courts in two states — Michigan and Wisconsin — ordered them to redraw their legislative districts after they were ruled unconstitutional. This move provides each state with a rare opportunity to address prison gerrymandering in the middle of a decade, rather than waiting for the next Census.

Prison gerrymandering is a problem created by the Census Bureau. During its tally every decade, it erroneously counts incarcerated people as residents of prison cells, rather than in their home communities, artificially inflating the population of prison towns. When states then use this data to draw new legislative districts, areas that contain prisons get additional political clout, at the expense of everyone else.

More than a dozen states have taken action to fix the Census Bureau’s error — including “red” states like Montana and “blue” states like California. Momentum on this issue has been so swift, in fact, that the fiercely bipartisan National Conference of State Legislatures recently called it “the fastest-growing trend in redistricting.” Roughly half the country now lives in a place that has addressed the problem.

The court-ordered redistricting in Michigan and Wisconsin gives each state a chance to join this growing movement, but they have to act fast.

Michigan’s chance to address racial disparities

In late December, federal judges ruled that 13 Detroit-area state legislative districts unfairly diluted the political clout of Black residents, and ordered the state’s independent redistricting commission to redraw them for the 2024 elections. Commissioners have until February 2 to produce new maps.

While the court only explicitly ordered that 13 districts be redrawn, changing the lines of these districts will almost certainly have statewide ripple effects.

Because the court ruling involved the dilution of Black representation, it is important to remember the disproportionate impact that prison gerrymandering has on Black residents in the state. Black residents are 13% of the state’s population but 51% of the people in state prisons. As a result of this disparity and the state’s failure to address prison gerrymandering, Black political representation across Michigan is being unfairly diluted.

As the redistricting commission draws new districts, it should address prison gerrymandering to return some political clout to Black communities in the state. In addition, the legislature should adopt Sen. Sylvia Santana’s bill to end prison gerrymandering in the state permanently. The state already prohibits prison gerrymandering in local government districts; ending it in state legislative districts is the next logical step.

Wisconsin’s opportunity to draw more fair districts

The day after Michigan’s districts were struck down, the state Supreme Court in neighboring Wisconsin also struck down that state’s legislative maps. Wisconsin has long been considered one of the most politically gerrymandered states in the nation. This order provides an opportunity to draw fair Wisconsin maps for the first time in decades.

Addressing prison gerrymandering won’t solve all of the issues with Wisconsin’s current legislative districts, but it will be a meaningful step toward ensuring fairer representation in the state.

For example, in Wisconsin’s Assembly District 53, roughly 8% of people counted in that district are incarcerated and live outside of that area. That means that 92 residents of that district have the same political sway as 100 residents in any other district that doesn’t have a prison. Ending prison gerrymandering will ensure that residents of this district don’t get a louder voice in government, simply because they live near a prison.

Recognizing that the governor and state legislature would be unlikely to reach a consensus on new maps, the court appointed two experts to review the submitted maps. They can then either alter the submissions or produce their own maps that resolve the court’s concerns. Notably, these experts have helped Virginia, Pennsylvania, and New York — three states that have addressed prison gerrymandering — draw their current legislative districts. Since these two experts already understand this issue and the ways to solve it, the final maps they propose should address prison gerrymandering to the fullest extent possible.

Failure to act means at least eight more years of prison gerrymandering

Redistricting officials in these two states have a lot of work ahead of them, and not much time to do it in. Ending prison gerrymandering in the state should be near the top of their list of priorities.

We’re hopeful that the Census Bureau will fix its prison gerrymandering mistake in the 2030 count. But Michigan and Wisconsin don’t have to wait that long to fix their prison gerrymandering problem. They have an opportunity to end prison gerrymandering while addressing problems with their state legislative maps right now. They should take advantage of it.

In Memory of Joseph “Jazz” Hayden

Jazz was a driving force for ending the disenfranchisement of incarcerated people and a powerful ally in our efforts to combat prison gerrymandering.

by Peter Wagner, January 12, 2024

On Saturday, January 6, voting rights pioneer and Prison Policy Initiative Advisory Board member Joseph “Jazz” Hayden passed away. He will be missed.

While Jazz Hayden was incarcerated in New York State, he developed a lawsuit arguing that the New York State’s disenfranchisement of incarcerated people violated the federal Voting Rights Act. He filed the first version of this lawsuit himself, and after his release, he recruited the NAACP Legal Defense Fund to take the case, then called Hayden v Pataki. While not directly successful, the lawsuit sparked a public movement and led to New York restoring the right to vote to people on parole. (New York restored these rights by executive order in 2018 and then by law in 2021.)

I first met Jazz at a conference in the summer of 2003, shortly after I published our first report on prison gerrymandering, Importing Constituents: Prisoners and Political Clout in New York. Jazz was a powerful and helpful ally. Building on his work to end disenfranchisement of incarcerated people, he often talked about how barring incarcerated people from the polls was related to but distinct from the implications of counting incarcerated people in the wrong location for the purposes of redistricting. Both problems reduce the political power of communities of color and further encourage more prison expansion; but the solutions were separate. At the early stages of both movements, it was invaluable to have Jazz’s endorsement on our Advisory Board to help us explain the relationship of these two issues to our growing list of allies and supporters.

Jazz had other impacts on the criminal legal system and it seems fitting to highlight one of his lesser-known but long-lasting contributions. And through his campaign against police brutality in New York City — which will surely be chronicled by others — Jazz developed a lot of camera skills which he applied to our 2005 report about the for-profit video “visitation” industry. With his efforts, we were able to take the first steps towards successfully convincing the public and policymakers that grainy, glitchy video chats could not be considered a replacement for in-person visits in prisons and jails. That industry’s growth has been slowed, and in early 2023 Congress gave the Federal Communications Commission formal jurisdiction over the industry.

I encourage you to also read this statement from the Legal Defense Fund, which highlights more of Jazz’s important work.

We’ll miss you Jazz.