Prison-Based Gerrymandering Creates Phantom Voters

Anyone who is in prison on the first of April, 2010, will remain there for the next ten years – according to the US census.

When the census counts prison populations, it counts them as residents of the towns in which they are incarcerated, not the communities they left and will most likely return to.

With more than 2 million people currently incarcerated, advocates say this turns prisoners, who in most states cannot vote, into phantom voters. Counting them in their prison district gives disproportionate power to the areas where these facilities are located – often rural, Republican districts – at the expense of the predominately urban communities of the incarcerated.

Advocates call it prison-based gerrymandering, after Elbridge Gerry and his particularly bold case of skewing electoral districts for political gain.

Census population counts are used to draw the boundaries of state legislative districts and other political districts. These must be of equal size to adhere to a federally mandated “one man, one vote” standard.

Unlike college students and military personnel, who are also counted in their immediate place of residence where they may or may not remain for the next ten years, prisoners are not able to vote. This gives each non-incarcerated person in a district housing a prison a disproportionate amount of political power.

Brenda Wright, the Democracy Program director for Demos, a public policy research and advocacy organization, called these “some pretty major distortions in terms of the ideal of one person, one vote.”

One Person, Multiple Votes?

A series of studies conducted by the think tank Prison Policy Initiative (PPI) has documented the scope of prison-based gerrymandering nationwide.

In Massachusetts, according to a PPI report, five legislative districts only have the minimum number of residents required for a district because of a local prison population. In Anamosa, Iowa, the presence of a prison with incarcerated people who do not vote effectively gave the 56 people living in the ward as much political influence as the 1,374 people living in each of the other wards.

A study conducted by the National Research Council, the working arm of the United States National Academies, on census residence rules said evidence that political inequalities result from current practice is “compelling.”

Though a Supreme Court decision authorized states to adjust the prison data, few do. This lack of action by local legislatures hurts the most vulnerable populations, says Kara Gotsch, director of advocacy at the Sentencing Project, a national organization working for fairness in the criminal justice system.

“It’s important to remember who is going to prison and disproportionately where they are coming from – most people come from poor urban areas, which don’t often have the community resources that they need,” Gotsch said.

According to Peter Wagner, director of Prison Policy Initiative, it not only affects incarcerated people who have been wrongly counted, but also “dilutes the rights of their family and their friends.”

Pushing for Census Policy Change

Wagner has called for a change in census policy – to count prisoners in their home communities rather than in the towns they are incarcerated, thereby fairly apportioning political representation.

“Fixing prison-based gerrymandering is a lot easier than it might sound; and the legal imperative is quite clear,” he wrote in a PPI blog. “The ideal solution? Starting in 2020, the Census Bureau should count people in prison as residents of their home communities. The country, its population, and the needs for its data have all changed since 1790. It’s time the prison count does as well.”

This assumption has been challenged by politicians from prison districts – they say that the inmates use local services like water and sewers while they are in jail, and there is no way of being sure that prisoners will head home once they are released. Also, they say, inmates are a public safety risk.

On the contrary, Wagner argued in a phone interview, “the census benefit is one of the only things that keep certain policies in place.” He cited the case of New York “where the legislature fought reforming the Rockefeller drug laws,” which made the penalty for being caught with two ounces of marijuana equal to that of second-degree murder and increased the likelihood of a long-term jail sentence.

He also said that the census count on prisons, contrary to popular belief, has “very little impact on federal funding. Most federal funding is block grants to states, and most people in prison do not cross state lines.”

According to the Pew Center, the total US jail population has grown by 705 percent since 1973, while the Department of Justice has recorded an increase of more than 200,000 people in state and federal prisons in the past ten years.

Gotsch says that more than 700,000 people are released from prison each year, after serving an average of two and a half years behind bars. Many of them go straight to their home towns, she says, “because individuals coming out of prison need a lot of support, and the strongest network for people is their families.”

The skewed political representation may affect the abilities of communities to advocate for what they need, Gotsch went on to say.

Broken Systems, Inside and Out

Mark Clements spent 28 years in jail because of deep flaws in the criminal justice system; he was tortured into confessing to a crime he did not commit and was tried as an adult at the age of sixteen. Clements was exonerated and walked free on August 18, 2009. Now back in his hometown of Chicago, he sees himself as the victim of another broken system, and says political inaction in poor communities is what causes injustice like that he suffered.

“These towns can care less about the needs and responsibilities of the inmates that it houses,” Clements said. He spent much of his time incarcerated at the Pontiac Correctional Center in Pontiac, Illinois – a town of 11,864 according to the 2000 census. The capacity of the prison is 1,058 people. “Many of them [inmates] are denied basic rehabilitation because lawmakers do not feel obligated to inmates … and these towns where the prisons are located provide little to nothing to the inmate.”

Clements now works for the Campaign to End the Death Penalty, and has found a renewed purpose in activist work.

“It’s very very important that whether you are doing good or bad your voices are heard in this arena of activism. Individuals that are incarcerated … [are] returning back to society and realizing that they do not have a voice,” he said. “I have taken it upon myself to try to fight federal as well as state officials to give inmates the services that they should receive.”

Local and State-Level Mandates

There are more than 100 counties and other forms of local government that revise census data to avoid prison-based gerrymandering when designing weighted voting systems or drawing districts, according to a report by Demos and PPI.

Maryland was the first state to enact a law to count prisoners at their home addresses on a statewide level on April 13, 2010. Seven other states have legislation pending on this issue – Connecticut, Florida, Illinois, Minnesota, New York, Rhode Island and Wisconsin.

But New York, where 75 percent of prisoners in upstate prison districts come from seven ZIP codes in dense New York City, could be the second to mandate this change on the statewide level.

Sen. Eric Schneiderman (D-Manhattan/Bronx) and Assemblyman Hakeem Jeffries (D-Brooklyn) have introduced legislation into the New York State Senate and Assembly to push New York into adjusting its census figures and redistricting on this basis.

It would require the state to collect home address data for each incarcerated person and draw districts based on this data.

Lupe Todd, spokeswoman for Assemblyman Jeffries, said “he is pushing for the bill because prison-based gerrymandering is unfair, it’s unethical, it’s unconstitutional […] it’s necessary in order to break the back of the prison-industrial complex where certain communities benefit from the institutionalization of young people who come from low-income communities across the state.”

The New York State Constitution states that “no person shall be deemed to have gained or lost a residence by reason of his presence or absence – while confined in any public prison.”

More than two-thirds of prisoners in the state are New York City residents, but more than ninety percent of them are counted as residents of districts in upstate New York. According to PPI, one out of every three people who “moved” to upstate New York in the ’90s actually went into a newly constructed prison. There are seven state legislative districts in prison-heavy upstate New York who would not meet the minimum population requirements without a prison population.

Todd said she hoped the assemblyman’s bill would be viewed with open eyes by opponents upstate. “This bill is not calling to remove jobs or remove the economic engine in communities,” she said. “We are not saying that some of these districts should be gone; we understand that good people work in prisons and in some areas it’s the primary economic engine. But for the purposes of drawing legislative lines, it is undemocratic.”

In a press conference announcing the bill, Rev. Al Sharpton called bringing an ending to prison-based gerrymandering “the voters’ rights and civil rights issue of this year in the state of New York.”

“Where you use people’s bodies to count against their interests,” Sharpton went on to say, “there’s nothing more blatant than that.”

A National-Level Path Forward

In February, following pressure from Rep. William Lacy Clay Jr. (D-Montana) of the House Subcommittee on Information Policy, Census and National Archives, the Census Bureau agreed to publish its data on prison populations several months earlier than the usual summer 2011 release date.

This will allow states to take prison locations into consideration as they begin their legislative redistricting processes, and assign fairer district proportions.

Prison Policy Initiative was pleased with the change, noting in a recent report that “[S]tates can use it in conjunction with their own data to assign incarcerated people to their home addresses, or assign prisoners to an unknown address so that they do not affect the redistricting formulas, or leave the prisoners counted where the prisons are.”

However, PPI insists, a more comprehensive change in how the census counts prisoners would be the most simple and effective path – because “the census count itself doesn’t have to change at all.”

Laughlin McDonald, director of the American Civil Liberties Union Voting Rights Project, said there have been no Supreme Court decisions mandating prison-based gerrymandering as unconstitutional at the national level.

But McDonald said if PPI and other advocacy organizations were to push the change, “the position would have to be consistent with what the courts upheld. I’m just saying that the courts tend to say if you are going to adjust populations you have to do it in a systematic way.” That would mean reconsidering how to count all transient populations, including college students and military personnel.

The US Census Bureau has estimated that it would cost as much as $250 million to find the address information of all prisoners housed in federal, state and local prison facilities. The National Research Council report agreed that it was not currently practical to do so, but urged the bureau to overhaul its approach to research and development. It said that improved record-keeping and census-taking procedures might make this possible by the 2020 census.

Glenn E. Martin, vice president of development and public affairs at the New York-based Fortune Society, which assists people with re-entry into society after a prison sentence, said there should be no urban-rural divide in the fight to end prison-based gerrymandering.

“We need to think of it in terms of the people who live in the communities that are losing constituents,” Martin said. “If you live in a community upstate and don’t have a prison you should be just as upset, because the county next door that is lucky enough to have a prison has more political power.”