Rural residents of New York State called for ending prison gerrymandering

Two residents of rural upstate New York explain why a prison cell is not a residence.

by Peter Wagner, July 15, 2016

Of the 155 comments submitted to the Census Bureau in 2015 calling for incarcerated people to be counted at home in the next Census, two letters from residents of rural upstate New York are notable because they discuss how the county governments in this prison-heavy region of the state consider the question of whether a prison cell is a residence.

Dan Jenkins wrote about Franklin County’s view that a prison cell is not a residence:

I live, since the late 1990’s, in Franklin County, New York, a rural county that has a large prison population. Prisoners are not residents of our community as they originate outside of our community, they have no interaction with our community and immediately leave the community when their sentences expire or when the Department of Corrections chooses to transfer them elsewhere. Enumerating these populations as part of our community forces our community to choose between either: (1) rejecting your counts, or (2) using census data that dilutes the votes of most of our community’s residents to the benefit of the few who live immediately adjacent to the prison.

I have been concerned about the implications of your “residence rule” for democracy within rural communities since the 1990 Census when I was a resident of another upstate New York county which similarly hosted a large correctional facility. I, and many of my Jefferson County neighbors were concerned and raised public awareness that relying on your counts resulted in county apportionment that diluted the votes of residents who did not leave near the prisons.

In the late 1990’s, I moved to Franklin County and was again involved as a citizen activist in redistricting. There, I was pleasantly surprised to learn that I would not need to organize a post-2000 lawsuit against Franklin County because my county was already committed to modifying your census data to remove the prison populations and avoid what is now commonly called “prison gerrymandering.” […]

What should be obvious from my letter is that I, along with the elected leaders of my county, were concerned that including the prison population where the Census Bureau counted it but where those people — 10% of our county’s Census population — do not reside would have a vote dilutive impact on the other parts of our county. We simply did not want to draw a county legislative districts that had a preponderance of incarcerated people. Such districts would have given every county resident living near the prisons much more voting power than the other residents of the county.

Having considered the effects of “prison gerrymandering” on rural counties that host prisons, I and many of my neighbors came to the obvious conclusion that the Census Bureau’s counts are inaccurate in so far as the Bureau counted incarcerated people as residents of the prison locations. As a result, we removed the prison populations from the one set of legislative districts that we could control — our county districts.

And here I feel I need to clarify our approach, given current statements from some plaintiffs in the current Texas case about excluding some non-voting populations from redistricting.

For us, in Franklin County, the decision was not whether to count incarcerated people, but where they should rightly be counted, which we think is at their home of record. We had no right to count prisoners as local constituents, they relied on the representative services of their home legislators, and there is nothing that one of our county legislators could do for them.

Removing the prison population was the best we could do because we lacked authority over the redistricting bodies of the New York City Council, the Albany City Council and the other home locations of the incarcerated people. As I, along with two neighbors wrote to you in our July 9, 2004 comment letter: “We know of no complaints from prisoners as a result, as they no doubt look to the New York City Council for the local issues of interest to them.”

Thankfully, New York State took things one step further with the passage of Part XX (ending prison gerrymandering at the state and local levels) which made sure that all state prisoners are counted in the appropriate locations. This is legislation that I and many of my neighbors supported. And while I support Part XX, I must note that the law had one shortcoming that only the Census Bureau can fix: Part XX did not reallocate federal prisoners to their homes; it simply removed them from the count.

The Census Bureau is the only entity which can provide a complete solution to the redistricting confusion caused by the current “usual residence rule.” I urge you to adjust this policy and count all prisoners at their homes of record in the next federal Census.

Martha Swan, from the neighboring county of Essex, also wrote that her county doesn’t consider a prison cell to be a residence. Swan explains that the county concluded that using the Census Bureau’s prison counts to draw county legislative districts results in vote dilution for other parts of the county, and went as far as to write that conclusion into local law:

I am writing … to urge you to count incarcerated people in their home districts.

My name is Martha Swan and I live and work in Essex County in northern New York, near the border with Canada. I live in the state’s largest and most sparsely populated Senate district. My Senate district has more people incarcerated in state prisons than any other district in the state.

I would like to focus my comment on documenting that my county does not consider incarcerated people to be residents of our county. There are 6 counties in my senate district. Four of those counties contain prisons, and all 4 choose not to count the prison populations when drawing county districts or designing weighted voting systems.

My county, Essex, justified its decision in its local law with a lengthy discussion on the practical and legal grounds of why inmates are not residents of the county. While I understand that more than 200 counties across the United States do this as well, I have read that my county was the one of the few to put its reasoning in writing and then vote it in to law.

For that reason, I would like to share with you part of Essex Local Law No 144 of 2012:

“Persons incarcerated in the state and federal correctional institutions have been convicted of criminal acts constituting felonies and their presence in Essex County is considered involuntary. These incarcerated persons: are not residents of the County since they are here involuntarily and can be relocated by the Commissioner of Corrections at the latter’s discretion; are not entitled to vote and thus are not voters in Essex County; and receive no services from the County – except when they commit new criminal acts and are brought before County Court, or when they are entitled to assignment of counsel as indigents in connection with parole hearings under New York Executive Law Article 12-B. Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which they are located.

“The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.”

Very similar language was also used in Essex County Local Law No. 1 of 2003. Recognizing that you may not have ready access to my small county’s local laws, I have attached the 2003 and 2012 laws to this letter.

I urge you to follow the lead of Essex County New York and count incarcerated people as residents of their pre-incarceration addresses and not as residents of my county.