New national op-ed shows the growing bipartisan calls for the Census Bureau to finally fix how it counts incarcerated people.
by Aleks Kajstura,
August 30, 2023
The need to end prison gerrymandering is “obvious to anyone who looks at the facts.” That’s the conclusion of a bipartisan duo of Montana lawmakers, Sen. Shane Morigeau and Sen. Jason Small, in an op-ed published this week in The Hill.
Thanks to a bill sponsored by Morigeau and supported by Small, Montana is among the growing list of states that have ended the practice of prison gerrymandering. 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. When states use this flawed Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents. Montana’s actions limited that injustice in the state.
In the piece, the lawmakers explain the unique ways prison gerrymandering harms residents, particularly communities of color, indigenous people, and low-income individuals:
This power shift has dramatic policy impacts. A community with a high incarceration rate is more likely to support policies that address mass incarceration’s root causes — poverty, substance use and untreated mental health issues. But prison gerrymandering dilutes the voices of these communities, weakening their influence on lawmakers. Ending prison gerrymandering will ensure these communities have an equal voice in policymaking.
In Montana, there was wide bipartisan agreement that the Census Bureau gets it wrong when it comes to counting incarcerated people, which is why there was such a commitment to addressing the issue. The state’s independent redistricting commission was the first to tackle the problem for the 2020 redistricting cycle. Because of the tight timeframe and specialized knowledge needed, it had to hire — at taxpayer expense — outside experts to fix the census data to count incarcerated people at their true homes. And the state’s legislature followed suit, making the practice permanent, even if the Bureau fails to fix the problem once again.
The Senators highlighted the broad support for this change, “Despite [these challenges], the bipartisan commission got it done. Our legislature — controlled by a Republican supermajority — overwhelmingly voted with Democrats to make this change permanent, and our Republican governor signed it into law. ”
Morigeau and Small also call out the Census Bureau for selectively applying its residence rule to harm some of the country’s most disadvantaged people:
As its rationale for counting incarcerated people in the wrong place, the bureau cites its “usual residence rule,” which says they count people where they eat and sleep on most days. This sounds reasonable until you realize the bureau treats incarcerated people differently than others in similar situations. For example, it counts students at boarding schools at their home addresses, but children in juvenile correctional facilities are counted where they are detained, even though two-thirds of them will be there for less than six months.
Finally, the lawmakers ask the inescapable question: “With so many places clamoring for this change and more likely to join their ranks by 2030, why does the Census Bureau still force state and local governments to jump through hoops and spend money to fix a problem it created?” And they exhort the Bureau to fix the problem, stating that ” …ending prison gerrymandering should be near the top of its list of changes” for the 2030 census.
This op-ed is the latest evidence of the growing, bipartisan desire for the Census Bureau to fix how it counts incarcerated people. The question remains: will the Bureau listen?
In the first public comment period about the 2030 Census count, dozens of people called on the Bureau to end prison gerrymandering. We pulled together their comments, which show why this change is necessary, and the consequences of inaction.
by Aleks Kajstura,
August 17, 2023
2030 is still years away, but the Census Bureau has already begun planning for the next decennial count. Last year, in one of the first steps of the 2030 Census, the Bureau asked for public input on ways to improve the process.
To anyone who has followed the growing, bipartisan momentum on the issue, it will come as no surprise that prison gerrymandering was a frequent topic of public comment. Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people in the wrong place, a prison cell, rather than at their true homes. 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.
The Bureau received dozens of comments on the topic from a diverse swath of people that are part of the nationwide momentum to end prison gerrymandering. (We already shared our comments, and a letter signed by 35 other criminal justice and voting rights organizations in November.)
The Census Bureau made these comments public, and we poured through them to understand what people were saying about this issue. These comments offer a rare opportunity to hear, in their own words, from incarcerated people, their families, advocates, and government officials about how the Bureau’s flawed way of counting incarcerated people exacerbates racial disparities, undermines our democracy, burdens state and local governments, and treats incarcerated people in a unique and unfair way.
Personal impact
The Census is a massive public undertaking, but it is also very personal. The Census counts over 300 million people, collects them into population totals, and publishes them as data tables that are fed into computers for redistricting. But getting counted correctly is still personal. By counting incarcerated people in the wrong place, the Bureau purposefully miscounts each of the 2 million people who are incarcerated on any given day.
As a member of Essie Justice Group, an organization representing women with incarcerated loved ones, explained in her comments counting incarcerated people in the wrong place disregards family connections:
Please end Prison Gerrymandering and count people for the next census in their homes, not where they serve in prison…. My loved one was in 3 prisons in 5 years. It is inaccurate to say he lived in any of them. He lived and now lives again home with his family.
And a formerly incarcerated person in St. Louis, Missouri, explained it ignores where incarcerated people themselves say they reside:
[D]uring the last census I was in Forest City Federal Prison. They never provided any of the prisoners census forms. So, I’m not sure if I was counted, but if I was, the information that they provided wouldn’t have been accurate. I feel that all prisoners should be accurately counted and counted toward where they came from, not where the prison is located.
Most incarcerated people are not given the chance to fill out a Census form. They are excluded from participation and know they cannot trust the Bureau to count them at home. When people perceive that this data doesn’t accurately reflect the true population and demographics, it erodes trust in the Census as a whole. If some individuals believe their communities are not adequately represented, they become skeptical of the entire process, which erodes trust in the Census in the very communities that it itself designates as hard to count.
Disparate racial impact
Rather than simply reflecting the racial inequality in society, by counting incarcerated people in the wrong place, the Census perpetuates and exacerbates existing systemic inequalities in society. By not accurately reflecting where incarcerated people live, the Census reinforces the marginalization of communities of color, skews representative power, and perpetuates the cycle of mass incarceration by hindering efforts to address broader issues of racial injustice and inequality within the criminal justice system.
In its comments, Fair Count, a Georgia-based advocacy organization that works to build long-term power in communities that have been historically undercounted in the census, offered suggestions on how the Bureau can address this problem:
Black people make up 38% of the incarcerated population, but only 13% of the general United States population. Considering the disproportionate rate of Black people that are likely to be incarcerated in their lifetime compared to White people and other people of color, it is especially critical to assess how data can be gathered fairly and accurately for this vulnerable population. The Census Bureau can partner with states that have already agreed to re-allocate Census data from incarcerated individuals back to their home addresses which entails mailing census forms directly to the incarcerated individuals for self-response. The goal would be to obtain more quality, accurate data on incarcerated individuals than incomplete, inaccurate data submitted to Census via administrative prison rosters.
Similarly, noting that there is a differential undercount of Black people in the Census, Voice of the Experienced (VOTE), a Louisiana-based organization working to reform the criminal legal system, points out in its comments that changing the way it counts incarcerated people could provide further opportunities for the Bureau to improve its data:
One reason that these undercounts exist is that … census data about those who are incarcerated is gathered by prison officials, rather than those who are actually imprisoned. It is widely understood that incarceration rates in the United States disproportionately impact people of color. … In turn, the census data that is gathered by prison officials fails to accurately reflect demographic statistics concerning issues such as the sex and race of those behind bars.
For instance, the Louisiana Department of Corrections demographic data on race is inaccurate as it only accounts for individuals who are “black” or “white.” …. There are no distinctions for incarcerated residents with other ethnicities and races such as American Indian, Asian and/or Asian American, and/or Hispanic. In addition, the DOC data on sex is reflective of an incarcerated individual’s sex at birth, and thus fails to account for individuals who are transgender.
Therefore, in order to truly reach everyone, the US Census needs to adjust the way that gathers data about those who are incarcerated by allowing this country’s incarcerated population to participate in the census.
Failure to meet state and local redistricting data needs
State and local government progress toward ending prison gerrymandering has been fast. Today, roughly half the country lives in a place that has addressed the practice. Progress has been so swift, in fact, that the National Conference of State Legislatures, a strictly bipartisan organization that assists state lawmakers on a wide range of policy issues, recently called it “the fastest-growing trend in redistricting.” However, the Census Bureau hasn’t kept up and as a result, has fallen short of its responsibility to provide states with redistricting data that is ready to use. Instead, states have to spend time and money correcting this data before they can begin the redistricting process.
As more states recognize that incarcerated people should be counted in their home districts, this problem will only get worse unless the Bureau takes steps to better meet redistricting data user needs.
In its comments, the California Legislature echoed the state’s independent redistricting commission’s request that the Bureau count incarcerated people at home and make that data available for state redistricting:
California’s independent redistricting commission voted unanimously to respond to the Federal Register Notice and request that data be provided that counts incarcerated people at their last-known residence instead of the address where they are incarcerated.
California wasn’t alone. Over a dozen states had to adjust Census redistricting data on their own to ensure that incarcerated people were counted at home. In its comments, the New Jersey Institute for Social Justice points out the unnecessary burden created by the Bureau:
[B]ecause the Bureau still uses prison gerrymandering in its national count, the burden of correcting the gerrymandered data for the purpose of redistricting falls to states and localities. Where the Census is supposed to provide data fit for use in redistricting, these states and municipalities must now use time and resources they do not have to readjust the data they receive from gerrymandered to non-gerrymandered.
The Census Bureau is failing to deliver one of its core objectives: providing states with the redistricting data needed to draw equal districts.
This isn’t just a problem states face. Over 200 local governments — most of which have even less money, time, and expertise to dedicate to redistricting — also must independently address prison gerrymandering when drawing city council and county commissioner districts.
As a redistricting advocate in Indiana explained:
Because of the distortions created by counting prisoners, several counties in Indiana already resort to crude attempts to correct the data by simply not counting people in prison when they redistrict. …
While changes in the way the redistricting data was published in 2020 made it easier for these local governments to exclude the prisons from their data, not all took this extra step. And they should not need to. The Census Bureau should publish data that does not put the burden on local government to make it suitable for redistricting.
The states and local jurisdictions aren’t going out on a limb — courts have consistently supported prison gerrymandering reform. In a change of pace from the comments that relied mostly on practical and moral reasoning, Dēmos submitted six pages of legal analysis, which came to the same conclusion:
[T]he facts and legal rulings discussed in this Comment make up only a small part of the vast record of evidence that the Census Bureau’s current residence rule, as applied to incarcerated persons, is outdated and no longer accurately reflects the population that it seeks to count.
Inconsistent with other Census rules
By counting incarcerated people in prison cells rather than their true homes, the Census Bureau treats them unfairly and differently than others in similar transitory situations. Incarcerated people are surprisingly mobile, yet, unlike other groups, the Bureau treats them as if they resided at the facility they happen to be assigned to on Census day.
A former New York State Senate redistricting staff member explained in his comments that Census policies on incarcerated people are inconsistent with its other practices for transient populations:
Counting prisoners at the places of incarceration is inconsistent with the treatment of other categories. Persons in military deployment and elementary and secondary school students at boarding schools are counted at their home addresses, even though they may be at their temporary locations much longer than many prisoners. Persons who travel between multiple homes get to decide where they wish to [be] counted, regardless of which home they happen to be occupying on Census Day. In New York City, where I live, the huge number of visitors from elsewhere in the US filling the hotels on Census Day will properly be counted at their permanent home addresses. This practice will be followed even though the visitors will be in their temporary Census Day location by choice, unlike the prison populations.
The counting of university students where they attend school is an entirely different matter. Unlike prisoners, they are eligible to vote at places where they attend school, and they are at those locations by choice. Moreover, the congressmembers and legislators representing those communities have a strong interest in making them attractive places to attend school. Elected representatives have no such relation with the prisoners held in their districts.
Undermining Democracy
The Census Bureau plays a central role in ensuring fair and accurate political representation, a fundamental aspect of a functioning democracy. But how it currently counts incarcerated people undermines its ability to accomplish this goal by stripping disproportionately incarcerated communities of their political voices.
The New Jersey Institute for Social Justice explained how the Census Bureau effectively reinstates slavery-era suppression tactics with its refusal to update the residence rules for incarcerated people:
As Black and other people of color are disproportionately incarcerated by the criminal justice system, the voting and political power of their communities are disproportionately weakened by this policy. Given that the vast majority of incarcerated people do not have the right to vote in this country, prison gerrymandering is a modern-day Three-Fifths Compromise.
A coalition of advocates in North Carolina also warned the Bureau against doubling down on practices that perpetuate racial inequality:
Many communities of color see a direct link between the history of slavery, Jim Crow, state-sanctioned racial violence, and the inequities of mass incarceration today, which forms the basis of distrust of government at all levels. By continuing the practice of counting incarcerated people at the site of their incarceration and not in their home communities, the Census Bureau is feeding into this history rather than making appropriate changes toward a more equitable future that fosters trust and collaboration between government and communities.
Following the states’ lead for 2030
Counting incarcerated people as if they resided at the prison or jail where they are held on Census Day is increasingly unjustifiable, and the practical challenges of addressing the problem are quickly falling away. As the League of Women Voters pointed out, the Bureau can now rely on two decades of state-led innovation to guide its efforts to address this issue:
As many local governments and state governments have navigated the process of correcting redistricting data to account for census data skewed by prison gerrymandering, the Census Bureau may consider consulting the experience of those jurisdictions to smoothly transition to gathering census information for incarcerated people at their home address.
The Census Equity Initiative and Funders’ Committee for Civic Participation succinctly summarized the path forward for the Bureau:
The Bureau should revise the Residence Criteria and Situations for the 2030 Census to enumerate incarcerated persons, including detained juveniles, at their last home address prior to incarceration. While the Bureau explores a change to its Residence Criteria for incarcerated persons, it should work with states that have changed their redistricting residence rules, along with state and local government associations and other interested stakeholders, on improving a methodology to count incarcerated individuals, including detained juveniles, in their home communities, rather than at the facilities in which they are incarcerated on Census Day.
In their own words, these incarcerated people, their families, advocates, and government officials made the clear case for why it is time for the Census Bureau to change how it counts incarcerated people. The current practice exacerbates racial inequities, frustrates state and local governments, undermines our democracy, and is inconsistent with its own practices.
As the Bureau moves forward on designing the 2030 count, one big question remains: When it comes to ending prison gerrymandering, will it listen to these calls for change, or will it stubbornly cling to outdated and inaccurate practices of the past?
