National civil rights coalition gives Census Bureau 5 reasons to end prison gerrymandering

National coalition of more than 240 organization urges the Bureau to count incarcerate people at home.

by Aleks Kajstura, June 28, 2024

Last week, The Leadership Conference on Civil and Human Rights — a coalition of more than 240 national organizations to promote and protect the rights of all persons in the United States — sent a letter to the Census Bureau urging it to end prison gerrymandering. Specifically, the group called on the Bureau to “update the current residence rules to maintain the accuracy of the census, ensure fair representation of incarcerated individuals within their home communities, and to prioritize equity among all residents regardless of their incarceration status.”

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new state or local districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents.

The letter follows up on a meeting with staff from the Census Bureau’s Population Division, which oversees how the “residence rule” — is applied to people in different living situations at Census time. To end prison gerrymandering, the Bureau needs to update how it applies its residence rule for incarcerated people to ensure an accurate Census. While is a plethora of reasons it should do so, the letter focuses on 5 key points:

1. The residence rules must reflect the real-life circumstances of incarcerated persons and the needs of the states and communities in which they live.
2. Representation and, therefore, democracy, are distorted by counting incarcerated persons where they are housed on Census Day rather than in the home communities to which most will return.
3. Incarcerated people are not part of the social and economic fabric of the communities surrounding the facilities where they are serving their sentences.
4. Criteria used to apply the residence rule to incarcerated people should be applied in the same manner as for other people away from home on Census Day.
5. Equity requires counting incarcerated people at home.

For details on all 5 points, check out the letter (or PDF).

Minnesota ends prison gerrymandering

With Governor Tim Walz's signature, the state is the latest to reject the Census Bureau’s flawed and outdated way of counting incarcerated people.

May 20, 2024

On Friday, Minnesota Governor Tim Walz signed HF 4772 — an omnibus elections policy bill — into law, officially ending prison gerrymandering in the state. With this action, Minnesota joins the rapidly growing list of states that have taken action on this issue. The measure requires state and local governments to count incarcerated people at their home addresses when drawing new political districts during their redistricting process.

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new state or local districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents.

“With this law, yet another state has rejected the Census Bureau’s flawed way of counting incarcerated people to ensure its residents have an equal voice in their government,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative and the head of the organization’s campaign to end prison gerrymandering. “Roughly half the country now lives in a place that has ended prison gerrymandering. With so many places taking action on this issue, it raises the question, ‘Will the Census Bureau listen to the growing consensus on this issue, or will it cling to its outdated and misguided way of counting people in prisons and jails in 2030?'”

The provisions ending prison gerrymandering in the state were initially introduced as standalone measures and were rolled into this omnibus election bill.

Most states have clauses in their constitutions or statutes that explicitly say that prisons are not a residence — whether someone is incarcerated away from home for a few months or a few decades — yet the Census Bureau continues to count people as if they are. The Census Bureau has the authority to change how it counts incarcerated people and officially end prison gerrymandering at the national level, but inaction has forced state and local officials to pass reforms and shoulder the burden of correcting flawed Census redistricting data to count incarcerated people at home.

In addition to Minnesota, eighteen other states — including “red” states like Montana, “blue” states like New York, and “purple” states like Maine — have recognized the impact of prison gerrymandering on political representation and have taken action 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.”

With Minnesota adding itself to this rapidly growing trend, there is yet another reason for the Census Bureau to finally change how it counts incarcerated people and end prison gerrymandering nationwide.

Most incarcerated people will return home; the Census Bureau should count them there

Using an incarcerated person’s last known home address when redistricting gives the most accurate picture of where they reside.

by Aleks Kajstura, May 14, 2024

Incarcerated people return to their home communities after release. That’s a fact that is obvious to anyone who lives in a community hard hit by mass incarceration. Yet when states seek to end prison gerrymandering by counting incarcerated people at home for redistricting purposes, some people ask why we should use someone’s home address — concerned that they might not return to that exact place after release or even might stay in the prison town.

Unfortunately, because we can’t predict the future and because prisons and jails generally don’t track where people go after their release, this has been a hard question to answer. However, we collected several unique datasets to fill this gap and provide the best evidence possible of where people go after being released from prison. We found:

• Incarcerated people don’t generally stay in the area of the prison after their release.
• Incarcerated people almost always go back to the communities they came from — if not the exact address they lived at before their arrest.
• Counting incarcerated people in prisons is likely the least accurate place to count them.

In theory, every legislative district within a state is supposed to have the same population to ensure everyone has equal representation from elected officials. However, the Census frustrates this goal by counting nearly 2 million incarcerated people as residents of the places in which they are detained instead of at their home addresses. The resulting Census data leads to “prison gerrymandering” — legislative districts that skew representation in favor of people who live near prisons and other correctional facilities.

To avoid prison gerrymandering, states have taken it upon themselves to count incarcerated people at home in their redistricting data. In practical terms, this means counting people at the pre-incarceration address on file with the Department of Corrections.

People don’t stay near the prison after release

There are two widely-accepted truths about mass incarceration:

1. Black and Hispanic people are consistently overrepresented in prisons
2. In most states, prisons are built in rural, largely-white communities.

With this in mind — along with the fact that more than half a million people enter and leave prison every year — you can conclude that if even a small portion of people stayed near the prison after release, those communities would, over time, begin to look similar to those on the inside, but that’s not the case.

In 2015, we released a report that explored the racial geography of mass incarceration. It showed that in 208 counties with prisons, the portion of the free population that was Black was at least 10 times smaller than the portion of the prison population that was Black. These trends were so strong, in fact, that we found 161 counties where the number of incarcerated Black people was actually bigger — by raw number — than the number of free Black people.

If people in prison stayed in those communities after their release, these dramatic disparities would not exist.

People go home after release

Unfortunately, while prison systems generally keep people’s home addresses on file, they don’t track whether they actually return to that address upon release. However, addresses for people on probation and parole can be a reasonably accurate proxy to fill this gap. That’s because a significant number of incarcerated people are on probation or parole after their release.

Comparing these two sets of addresses, we can get a sense of whether people return to where they came from after incarceration. If the portion of incarcerated people from an area is similar to the portion of people on probation or parole from that area, you can reasonably conclude that people are returning to their home communities after incarceration.

Rhode Island serves as a useful example for this analysis because all of its correctional facilities, including pre-trial facilities, are located in one correctional complex (in the city of Cranston). In most states, people are held pre-trial in jails, usually close to home, but in Rhode Island, they are incarcerated equally far from home, whether they are held for a few days or a few years.

We looked at the state’s probation and parole data for 2020 and compared it to the state’s 2020 redistricting data that counted incarcerated people at home.¹

Examining this data for the five largest cities in the state, you see that the numbers align quite closely, reinforcing the fact that incarcerated people almost always return to their home communities after their release.

It is worth noting that Providence, the state’s biggest city, represented a larger portion of the incarcerated population than the probation/parole population. While some may be tempted to say this disproves our point, it is important to remember the context of this time period. The probation/parole data was from December 2020, at the pandemic’s peak, when many urban areas saw their populations dramatically decrease due to health and economic concerns and the desire for more space. Based on the patterns in the other communities, it is reasonable to conclude this data represents pandemic-era fluctuations and should be treated as such.

Importantly, you can also see more incarcerated people come from Cranston than are there while on probation and parole. This is another sign that most people don’t stay near the prison after incarceration unless they are from there originally.

These numbers aren’t a perfect match, which means that the exact address someone ends up at is sometimes different than the one they had on file while incarcerated. However, it clearly shows that people almost always return to their home communities after incarceration.

Prison is the least accurate place for the Census Bureau to count incarcerated people

Even if someone is unconvinced by the data showing that incarcerated people are likely to return to their home communities after their release, there are plenty of reasons — backed up by hard data — that make clear that by counting incarcerated people at prisons, the Census Bureau is choosing the least accurate option.

People are incarcerated further from home than most people choose to live

Over 60% of people in state prison are held at least 100 miles from their homes. Importantly, according to the Census Bureau, 80% of people in the U.S. who are of similar median age to the incarcerated population (roughly 30-years-old) still live within 100 miles of where they grew up.

When someone is incarcerated, they are moved far from their daily surroundings and usually locked up somewhere they never visit on their own — let alone live. They’ll likely never know anyone outside of the prison walls, nor rent a house, visit a business, or attend a community event there. So why would the Census Bureau decide this was their home?

People counted at the prison on Census Day aren’t likely there for long

There is a common misconception that a person in a prison will be in that facility for a long time — this is the mistaken belief that is the foundation of the Census Bureau’s choice to count incarcerated people there. But this simply isn’t true.

The average time served by people in state prison is 2.7 years, with this “average” pulled up by the few people serving very long sentences; the median time served is 15 months. Short stays in prison are common. For example, in Rhode Island, the median length of stay for people serving a sentence in the state’s correctional facilities is only 99 days. This means that most people counted at a state prison on Census Day will spend the vast majority of the next decade outside the prison walls.

Even people incarcerated away from home for a year or longer are not in one place. They move between multiple facilities. Nationally, 75% of people serve time in more than one prison facility, 12% of people serve time in at least five facilities before returning home. While they are being shuffled between facilities, incarcerated people maintain a usual residence elsewhere; their pre-incarceration home remains the only actual stable address.

A home address is the most accurate option

The home address someone has on file with the Department of Corrections may not be the exact place they return to after incarceration. However, it is a close approximation of where they reside through and after incarceration. While some of these address records may vary in precision, the one address we know is wrong is the facility address.

States that adjust their redistricting data to count incarcerated people at home use the home addresses contained in their Departments of Corrections records. This practice creates redistricting data that better reflects the populations of communities hardest hit by mass incarceration and communities that contain large prison populations. The Census Bureau should count incarcerated people at home in the 2030 Census using home address data as the states have done.

Grab our one-pager about this issue at https://www.prisonpolicy.org/factsheets/home_addresses_one_pager.pdf.

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.

Making the grade: New report grades states on their 2020 redistricting processes — including whether they ended prison gerrymandering

Report highlights growing bipartisan support for counting incarcerated people in their home communities.

by Mike Wessler, November 9, 2023

A new report from CHARGE (the Coalition Hub for Advancing Redistricting & Grassroots Engagement), a coalition of good-government groups working to improve the redistricting process, makes clear that ending prison gerrymandering has quickly gone from an emerging issue done by only a handful of states, to being among the gold-standard redistricting practices.

Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people as residents of the wrong place — a prison cell — rather than in their home communities. When state and local governments use this data to draw new government districts every decade, they inadvertently give more political clout to districts that contain prisons, at the expense of everyone else.

The report is based on hundreds of interviews and surveys that members of CHARGE conducted with advocates and organizations involved in the redistricting process in each state. It gave every state’s redistricting process a grade from “A-” to “F”. In addition to addressing prison gerrymandering, these grades are also based on best practices related to transparency, opportunities for public input, the willingness of decision-makers to draw districts based on that input, adherence to nonpartisanship, empowerment of communities of color, and policy choices.

Several key findings related to prison gerrymandering emerge from the report:

• Prison gerrymandering reforms have become increasingly nonpartisan: The report notes that in Montana, which it gave a B grade, “(d)espite a polarized atmosphere in which commissioners of different parties were unable to agree on final maps, the (Montana Districting and Apportionment Commission’s) vote to end prison gerrymandering was unanimous and bipartisan.”
• States that addressed prison gerrymandering received some of the highest grades: 15 states received a grade of B- or higher; seven of them (California, Massachusetts, Colorado, Montana, Nevada, New Jersey, Washington) had already taken action to address prison gerrymandering. Another state in this group, Maine, has since also passed legislation for the 2030 redistricting cycle.

This report follows a report by the National Conference of State Legislatures (NCSL), which looked at states’ experiences ending prison gerrymandering during the 2020 redistricting cycle. In an accompanying briefing, the organization notes that ending prison gerrymandering is “the fastest-growing trend in redistricting.”

While the best way to address prison gerrymandering is for the Census Bureau to change how it counts incarcerated people, these reports show that states can and should take action to address the problem on their own. And, even though the 2030 redistricting process is still several years away, now is the ideal time for them to do so. Passing legislation now will ensure states have the data and process in place to take on this task after the 2030 count, it will also add their voices to the growing chorus calling on the Census Bureau to change its outdated policy.

These two reports, when taken together, highlight the need — and growing bipartisan calls — for the Census Bureau to finally take steps to end prison gerrymandering nationwide. As the 2030 count draws closer, it remains to be seen whether the Bureau will get an A or an F on this easy test.

Maine becomes the latest state to end prison gerrymandering

New law, sponsored by Speaker of the House Rachel Talbot Ross, ensures people in state prison are counted for redistricting at the same place they vote.

July 5, 2023

On Friday, Maine Governor Janet Mills signed LD 1704/HP 1093 into law, officially ending prison gerrymandering in state legislative districts by counting incarcerated people at their home addresses for redistricting purposes. With this measure, sponsored by Speaker of the House Rachel Talbot Ross, Maine is one of 18 states that have addressed this issue to create fairer legislative representation.

Prison gerrymandering is a problem created by the Census Bureau counting incarcerated people as residents of their prison cells rather than in their home communities during the decennial count. This practice artificially inflates the populations of areas that contain prisons, giving these areas additional political clout when state and local governments use this Census data to draw new district lines every ten years. Reforms, like Maine’s, allow state officials to 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.

This victory in Maine is particularly noteworthy as the state is one of two that allows people in prison to vote. People in Maine prisons register and vote at their pre-incarceration address. The reform signed last week aligns the state’s redistricting laws with these voting laws.

The new law also ensures that redistricting data reflects the community ties of incarcerated people. While someone may be incarcerated away from home on Census Day, they remain a member of their home communities. In fact, for most people who are away from home for long times, the Census Bureau recognizes the importance of family and community ties and counts them at home (e.g., truck drivers, boarding school students, members of Congress, military personnel) but fails to apply the same rules to incarcerated people. Maine has just ensured that incarcerated people and communities hit hardest by mass incarceration are treated the same as everyone else for redistricting purposes.

“Maine is the latest state to reject the flawed way that the Census Bureau counts incarcerated people,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “This measure is another piece of evidence of the growing consensus among the states on prison gerrymandering. One big question remains: will the Census Bureau listen to these states and change how it counts incarcerated people, or will it stubbornly dig in its heels and continue to force governments to modify redistricting data to make it usable?”

While it may seem like the 2030 Census is a long time from now, by passing this legislation this year, Maine will have enough time to collect the data necessary to ensure it can successfully count incarcerated people at their homes during its next redistricting period, a practice other states considering this reform should follow.

Roughly half the country now lives in a place that has addressed prison gerrymandering, with more than 200 local governments and 17 states tackling the issue. Progress on this issue has been so rapid that the National Conference of State Legislatures, a strictly bipartisan organization that assists state lawmakers on policy issues, recently called state efforts to end prison gerrymandering “the fastest-growing trend in redistricting.”

Congresswoman Ross introduces bill to end prison gerrymandering nationwide

Federal legislation would require the Census Bureau to count incarcerated people at their true homes, rather than in prison cells.

by Danielle Squillante, April 26, 2023

Today, Congresswoman Deborah Ross from North Carolina, along with Rep. Mark Pocan of Wisconsin, Rep. Emanuel Cleaver of Missouri, and Rep. Emilia Strong Sykes of Ohio, introduced legislation to end prison gerrymandering nationwide. The bill would require the Census Bureau to count incarcerated people at their last known residence rather than their prison cell, which is where the Bureau currently counts them. When states and local governments draw political districts using Census data that counts incarcerated people in prisons, they unintentionally enhance the representation of people who live near prisons while diluting the representation of everyone else. This legislation would ensure that every community receives equal political representation.

The introduction of this bill comes on the heels of Montana — with wide bipartisan support — passing legislation to end prison gerrymandering in the state permanently. Montana Governor Greg Gianforte signed the measure — which received near-unanimous support — into law yesterday.

The Census Bureau has the ability to fix this problem on its own but thus far has stubbornly refused to do so. There are plenty of reasons for it to make this change:

• Governments are increasingly rejecting the Bureau’s flawed way of counting incarcerated people, signaling the agency is not meeting its responsibility to provide data that is ready for use by state and local governments;
• The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration;
• Communities of color are disproportionately harmed by prison gerrymandering; and
• The Bureau’s policy treats incarcerated people differently than others in similar situations.

State and local governments already recognize the importance making this change. Roughly half of the U.S. population lives in a place that has taken steps to end prison gerrymandering, with over a dozen states and over 200 local governments — both urban and rural — taking action on this issue. In the absence of a federal solution, these states and local governments have had to make corrections and adjustments to Census data to ensure it accurately reflects its population. After the 2020 redistricting process, states expressed frustration with the current process and challenges they faced, including accessing data in a timely manner, adjusting the data so it aligns with state laws, and getting address information for individuals in federal custody.

The best way to solve this problem is for the Census Bureau to change its policies to count incarcerated people at home — something it can do today without legislation. By acting to make this change now, before legislation is passed, the Bureau can develop a comprehensive research and implementation plan that ensures this transition is smooth and thoughtful. However, today’s bill shows that if the agency fails to act, lawmakers in Congress are increasingly ready to force it to finally fix this problem.