Maryland law brings long-awaited racial justice to Somerset County

After the passage of the No Representation Without Population Act, the county that had no functional majority minority Commission districts draws two.

by Leah Sakala, August 16, 2012

The Somerset Herald reports that a county in Maryland that had never elected an African American to county office may soon elect two, thanks to the Maryland law that ended prison-based gerrymandering. Although Somerset County Maryland contains a sizable African-American population, first slavery, then Jim Crow, and then prison-based gerrymandering prevented the African-American community from being able to elect a candidate of its choice for hundreds of years.

Activists from Somerset County played a central role in passing Maryland’s first-in-the-nation law requiring that incarcerated people be counted at their home addresses for state and local redistricting purposes. This law capped an effort to secure fair representation in Somerset County that spanned several decades. In the 1980s, in order to settle a Voting Rights Act lawsuit brought by local activists, the county agreed to create a majority minority district to allow the African-American community to elect a candidate of its choice.

But the effort was foiled because the district was drawn based on U.S. Census data that counted the people incarcerated in the Eastern Correctional Institution as residents of the county. When county officials redistricted after the 1990 Census, they drew a district that appeared to be majority African American. But because a large portion of the minority population that was counted in the new district was made up of incarcerated people who were not allowed to vote, there weren’t enough actual African-American voters in the district to elect the candidate of their choice. As Deborah Jeon from the Maryland ACLU explained,

“I wasn’t here in ’87 when the prison opened, but I was here in 1990 and it was on my radar screen that something in Somerset was amiss. It didn’t seem to be working fairly. We began to focus on the prison and the effect of the prison on the election.”

The handful of voters who lived near the prison had more than twice the representation on the county commission that their numbers warranted, and including the prison in that district made it impossible for African Americans anywhere in the county to elect a candidate of their choice. In terms advancing minority voting power, the county lived up to its official motto: “Semper Eadem” or “Always the Same.”

But in 2009, a coalition of local activists worked together with the Somerset County chapter of the NAACP, the Maryland ACLU, and the Legislative Black Caucus to document the problem and find a remedy. Their efforts resulted in a state-wide solution to the problem of prison-based gerrymandering that ensured that the African-American community of Somerset has the opportunity to be fairly represented in county affairs.

The No Representation Without Population Act of 2010 ensures that everyone has the same access to government regardless of whether or not they live next to a large prison, and the law ended the practice of giving extra representation to a state legislative district in western Maryland that was 18% incarcerated. The law also ensures that no district in the state is able to masquerade as a functional majority-minority district solely because it contains a large prison population.

With the endorsement of the U.S. Supreme Court in June, the No Representation Without Population Act is firmly established as one of the major civil rights victories of the decade. And when Somerset County holds the next County Commissioner election in 2014, Somerset residents will be able to choose a Board of Commissioners that faithfully reflects the needs and interests of the county’s actual population.

Supreme Court upholds Maryland law ending prison-based gerrymandering; Huge victory for fair representation

The U.S. Supreme Court upheld the constitutionality of Maryland’s groundbreaking civil rights “No Representation Without Population Act.”

June 25, 2012

For Immediate Release: June 25, 2012

Washington, DC – The U.S. Supreme Court today upheld the constitutionality of Maryland’s groundbreaking “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes. The 2010 law was a major civil rights victory that ended the distortions in fair representation caused by using incarcerated persons to pad the population counts of districts containing prisons.

The law upheld today is a state-based solution to the long-standing problem in the federal Census of counting incarcerated people as residents of the prison location, even though they cannot vote there and remain residents of their home communities for virtually all other legal purposes. The practice of prison-based gerrymandering particularly harms urban communities and communities of color that disproportionately contain the home residences of incarcerated persons. Other states have since passed similar laws, but the Maryland law was the only one to go to the Supreme Court.

“Today’s Supreme Court decision in Fletcher v. Lamone affirmed the constitutional ‘one person one vote’ foundation of our decade-old campaign to end prison-based gerrymandering,” said Peter Wagner, Executive Director of the Prison Policy Initiative and the nation’s leading expert on how the Census Bureau’s practice of counting incarcerated people as residents of the prison locations harms the democratic process.

The lawsuit was filed last November, and the civil rights community responded quickly to brief the lower court on the constitutionality of Maryland’s law. In an amicus brief, the Prison Policy Initiative and Dēmos, along with the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland and Somerset County Branch NAACP, and the NAACP Legal Defense and Education Fund explained the basis and need for the landmark law. The lower court’s opinion, affirmed today, rejected the allegation that the law was somehow dilutive of minority voting rights, finding that the No Representation Without Population Act was an historic Maryland civil rights victory:

“As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.”

Brenda Wright, Vice President for Legal Strategies at Dēmos, hailed today’s ruling in Fletcher v. Lamone: “The Supreme Court’s ruling is a huge victory for the national campaign to end prison-based gerrymandering. This decision sets an important precedent that will encourage other states to reform their redistricting laws and end the distortion in fair representation caused by treating incarcerated persons as residents of prisons.”

Today’s decision in Fletcher v. Lamone constitutes the most significant court ruling to date on the factual and legal justification for states to reallocate incarcerated persons to their home residences for purposes of redistricting. The ruling upheld today noted that “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.'” It further noted that

“These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts.”

The plaintiffs in Fletcher challenged Maryland’s right to correct where incarcerated people are counted for the purpose of drawing congressional districts. “Congressional districts are held to the highest standards to ensure population equality.” said Brenda Wright of Dēmos. “The Court’s decision that Maryland’s law satisfies the strict standards applicable to congressional districts clears the path for other states to pass similar laws at all levels of government.” New York, Delaware and California have already enacted similar legislation, and advocates are calling on the Census Bureau for a national solution. “Today’s ruling by the U.S. Supreme Court affirming that Maryland’s law both meets constitutional requirements and was fairly implemented will hopefully encourage the Census Bureau to change its policy on where incarcerated people are counted in the 2020 Census” said the Prison Policy Initiative’s Peter Wagner.

Breaking the Census: Redistricting in an Era of Mass Incarceration

The William Mitchell Law Review has published Peter Wagner's new, highly-readable introduction to the problem of prison-based gerrymandering and its remedies.

by Peter Wagner, May 22, 2012

The William Mitchell Law Review has published my new article, “Breaking the Census: Redistricting in an Era of Mass Incarceration.”

Above the 98 footnotes is a highly-readable introduction to the problem of prison-based gerrymandering and its remedies. The final section of the article discusses best practices for state and local governments that wish to abolish prison-based gerrymandering.

The article is in Volume 38, Number 4, a special issue called, “Incarceration in the United States: Issues in America’s Jails and Prisons.”

Kansas shouldn’t use prisoners to influence redistricting

A new Kansas City Star piece by Mary Sanchez warns that prison-based gerrymandering may dramatically inflate the votes cast in a Kansas state legislative district.

by Leah Sakala, March 5, 2012

Mary Sanchez has just released a great piece in the Kansas City Star about how prison populations are a big deal in Kansas state legislative redistricting.

She explains that the high concentration of correctional facilities in a single legislative district may cause the most dramatic instance of artificial vote inflation in any state district in the nation:

Kansas has the potential for shenanigans like no other state, thanks to the high concentration of inmates in the Leavenworth area.

Lumped together and tallied, they have a presence that can be used to build a distorted state Senate or House district. Prisoner counts can dilute voting power in some areas while falsely ramping it up for voters living near prisons.

She points out that not only does Kansas have the ability to refuse to engage in prison-based gerrymandering, its current practice of reallocating military and school populations for redistricting purposes has served as a national model for redistricting population adjustments:

Remember that standard of one person, one vote from grade school civics? Prison gerrymandering undercuts it because maps are supposed to be drawn so districts have relatively equal population bases.

The Leavenworth area includes the U.S. Penitentiary, Leavenworth Detention Center and Lansing Correctional Facility.

One of the proposed maps being considered by the legislature is to redraw House District 40 by including all of the facilities. That’s a potential bump of more than 5,000 people. It’s an unfair tally compared to portions of the state without prisons.

The U.S. census counts prisoners by where they are incarcerated, rather than their home address. But pushback by groups like Wagner’s and other voting rights advocates convinced the Census Bureau to separate out those numbers after the 2010 count.

Meaning if Kansas wanted to play this game fairly, it could.

In fact, Kansas is considered a model for addressing the temporary residency of college students and military personnel.

The Kansas legislature needs take swift action to remove prison populations from the population data used for redistricting purposes. Otherwise the state will dilute the votes of every resident who doesn’t live next to a prison, and become a dramatic national symbol of how prison-based gerrymandering dilutes your right to vote.

Intentional prison-based gerrymandering found in Wyoming

One Wyoming district is moved 17 miles to include a prison; padding one district with a large prison protects two incumbents from facing each other.

by Peter Wagner, March 4, 2012

Joan Barron writes in today’s Casper Star-Tribune about the most blatant case of prison-based gerrymandering I have ever seen: a Wyoming Senate district that snakes around an incumbents house and then follows the Nebraska border for 17 miles to snag a prison. The initial proposed districts had the two incumbents facing each for re-election, but using the prison to pad one district shifted the other incumbent into a separate district.

Graphic by Bob Machuga

I typically write about the problem of prison-based gerrymandering in terms of vote dilution. The shape of the prison district is problematic, but is separate from that issue.

In our analysis, we found several new Wyoming legislative districts that meet federal minimum population requirements only by using prison populations as padding. The prison population can’t vote, and by state law they retain their pre-incarceration residences. Counting incarcerated people in the wrong location gives extra political influence to the districts with prisons, and dilutes the votes of residents who live in any other district.

The truly unique part about prison-based gerrymandering in Wyoming is how blatant it is. In order to increase his chances for re-election, Senator Meier insisted that his house be shifted to another district. The captive population at the Wyoming Medium Correctional Institution made the perfect inert ballast to shore up the district his house previously was in.

Besides prison finger’s funny shape, the legislature’s other major redistricting controversy was about which counties were split. Keeping communities together makes a lot of sense, and that principle applies to prison populations too. That’s why four states have passed laws to count incarcerated people at home for redistricting purposes. It doesn’t make sense to use prison populations to pad out any one district when their real residences are in other parts of the state.

Most state and local governments are moving towards ending prison-based gerrymandering. Wyoming’s new maps buck that trend and deliberately go the other way. Wyoming will get some ridicule for the funny finger shaped district; but the real losers are every resident of the state who does not live next to a large prison.

Federal Judges uphold Maryland law ending prison-based gerrymandering

One judge calls our amici brief "particularly impressive and persuasive".

December 27, 2011

On Friday, Dec 23, a federal three-judge panel rejected a lawsuit seeking to overturn Maryland’s landmark “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes.

The Maryland law addressed a long-standing problem in the federal Census that counts incarcerated people as residents of the prison location, even though they cannot vote and retain their pre-incarcerated residences. For decades, using unadjusted Census data diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

The Judges note that the No Representation Without Population Act they upheld was an important Maryland civil rights victory: “As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20)

Other versions of Maryland’s law have since passed in New York, Delaware and California. Maryland was the only state to apply its law to congressional redistricting, and the first state to complete the process after passing a law. The Judges’ ruling that the law was properly passed and fairly implemented will encourage other states to pass similar laws and will hopefully encourage the Census Bureau to make their own changes in where incarcerated people are counted.

The Court issued its ruling late on the Friday before closing for the Christmas weekend, and just three days after a hearing on the evidence and oral arguments on Tuesday. The Court had promised a decision by the end of January, but quickly concluded that the lawsuit was without merit. The case, Fletcher v. Lamone, was a Republican-backed lawsuit that challenged the congressional plan proposed by the Democratic governor of Maryland. The suit raised claims of partisan gerrymandering and racial discrimination against African-Americans. Three of the claims attacked the No Representation Without Population Act as part of that otherwise unrelated lawsuit.

The Prison Policy Initiative, along with our colleagues at the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, the NAACP Legal Defense and Education Fund, and Dēmos submitted a friend of the court brief to make it clear to the court that the No Representation Without Population Act was protective of minority voting rights. (Our brief did not address the other claims in the lawsuit.) Judge Williams, in his concurring opinion, called our brief “particularly impressive and persuasive.” (p. 49)

The Court upheld the state’s congressional districting plan on all counts. While most of the 55-page opinion concerned other claims, considerable treatment was given to the No Representation Without Population Act.

The Court explained the law and its rationale:

• Quoting the state’s summary, “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.” The court then goes on to explain:

  “These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts. In other words, residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.” (p. 9)

• The Court noted the critical importance of ending prison-based gerrymandering in local redistricting where the impact of a single prison can be the majority of a district. The Court discussed the infamous Somerset County example where a county commission district intended to be majority African-American was unable to elect an African-American for decades because the district contained a large prison and the African-American voting population of the district was too small to elect a candidate of African-American voters’ choice. (p. 9)

The Court explained that states are not required to blindly use the Census for redistricting purposes:

• Federal law requires Congressional districts to be exactly equal in population, but does not prohibit states from making improvements to the federal census data in establishing that population base. Federal case law allows adjustments to the data used for congressional districts. Although Census data is presumed to be a good starting point, the data can be adjusted to correct for flaws. These adjustments, however, may not be done in “a haphazard, inconsistent, or conjectural manner.” (pp. 12-13)

• The Court found that The No Representation Without Population Act and its implementation by the Maryland Planning Department meets the standard, writing:

  “The question remains whether Maryland’s adjustments to census data were made in the systematic manner demanded by Karcher. It seems clear to us that they were. As required by the regulations implementing the Act, … [the Maryland Department of Planning] undertook and documented a multistep process by which it attempted to identify the last known address of all individuals in Maryland’s prisons…. This process is a far cry from the ‘haphazard, inconsistent, or conjectural’ alterations the Supreme Court rejected in Karcher.” (pp. 16-17)

Because the No Representation Without Population Act was found to satisfy even the stricter standards applicable to congressional districts, the opinion bodes well for the constitutionality of similar laws that apply to state legislative and local redistricting, where governmental discretion to make adjustments in Census data is even clearer.

The Court addressed several other issues that come up frequently in discussions about ending prison-based gerrymandering:

• Improving how incarcerated people are counted does not necessitate improving how other groups are counted. Plaintiffs criticized the state for reallocating incarcerated people to their homes, but not doing the same for members of the military or students in dorms. The Court called the assumption that these populations are all similarly situated to be “questionable at best.” The court explains:

  “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life. In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.” (p.18)

• States should improve redistricting data where possible, even if it cannot be made perfect. For example, plaintiffs criticized the state’s reallocation because not all incarcerated people return to their exact prior address. The Court ruled:

  “Because some correction is better than no correction, the State’s adjusted data will likewise be more accurate than the information contained in the initial census reports, which does not take prisoners’ community ties into account at all.” (pp.18-19)

• The Court found that “although the Census Bureau was not itself willing to undertake the steps required to count prisoners at their home addresses, it has supported efforts by States to do so,” quoting the Census Bureau Director’s explanation that the new Advance Group Quarters data would

  “enable states ‘to leave the prisoners counted where the prisons are, delete them from redistricting formulas, or assign them to some other locale.'” (p. 16)

The Court also addressed the main impetus for our brief, namely the plaintiff’s bizarre implication that a law passed with the intent of improving African-American voting rights somehow diluted African-American votes:

“Our review of the record reveals no evidence that intentional racial classifications were the moving force behind the passage of the Act. In fact, the evidence before us points to precisely the opposite conclusion.” (p.19)

Albany Judge Upholds Law Ending Prison-Based Gerrymandering

New York Supreme Court Justice Eugene Devine today upheld New York's law ending prison-based gerrymandering in the Little v. LATFOR lawsuit.

December 2, 2011

Victory for Civil Rights, Fair Representation Removes Any Doubt That Redistricting Body Can Proceed Under New Law

For Immediate Release: Dec. 2, 2011

Albany, NY – New York Supreme Court Justice Eugene Devine today upheld New York’s law ending prison-based gerrymandering in the Little v. LATFOR lawsuit. His decision squarely rejects the plaintiffs’ claim that the New York law violated various provisions of the New York State Constitution.

Attorneys for the fifteen voters from around New York State who joined the suit as intervenor-defendants issued the following joint statement:

By eliminating the political distortion caused by prison-based gerrymandering, the new law upheld by today’s decision will ensure fairer representation for all New Yorkers, starting with this year’s redistricting.

Judge Devine’s decision affirms what we have known from the beginning: the law ending prison-based gerrymandering advances fairness in redistricting and is in complete agreement with New York’s state constitution. Now that Justice Devine has made his decision, we look forward to seeing LATFOR implement the new law in the coming months.

The organizations representing the fifteen voters in court were the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative. In today’s ruling rejecting Plaintiffs’ legal challenge, the Court repeatedly cited the organizations’ arguments explaining the policies and legal precedent supporting New York’s law.

On Aug. 4, Judge Devine granted the fifteen voters permission to intervene and defend the law. The defendants in the lawsuit were government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for state and local redistricting and reapportionment but does not affect funding distributions. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence.

New York State Senator Elizabeth Little and a group of co-plaintiffs sought to restore New York’s former practice, which artificially inflated the voting strength of select communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.

A recent Quinnipiac University poll reported that public opinion is against prison-based gerrymandering, with a majority of New York State voters agreeing that “prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

Prison-based gerrymandering in Tennessee Counties

This memo discusses several ways that Tennessee counties could harmonize the federal “one person one vote” principle with the unique requirements of the State Constitution.

by Peter Wagner and Aleks Kajstura, September 26, 2011

The most dramatic instances of prison-based gerrymandering tend to be in rural counties that have large prisons, because a single state or federal prison can be the majority of a small county board district. The common solution used by more than 100 counties and municipalities is to remove the prison populations prior to redistricting. In most cases, this solution is permitted by law: Federal law gives local governments the right to determine the population base for their districts, and most state laws are silent on the question.

The operative word is “most.” Many of the most dramatic examples of prison-based gerrymandering are clustered in states where local governments have a little less flexibility when redistricting: notably Virginia, Wisconsin and the subject of this memo, Tennessee.

At the National Conference of State Legislatures in August, I met Tom Fleming, Director of the Office of Local Government within the Tennessee Comptroller’s office. He and I were attending the same session where the Census Bureau was soliciting feedback on the effectiveness of the Redistricting Data Program. After the session, he and I spoke about how the issue of prison-based gerrymandering effects Tennessee counties, and I offered to prepare a briefing memo on some possible solutions to the problem for this round of redistricting. That memo is below.

To: Tom Fleming
From: Peter Wagner and Aleks Kajstura, Prison Policy Initiative
Date: August 23, 2011
Re: Prison-based Gerrymandering in Tennessee Counties

This memo discusses the impact of the Census Bureau’s decision to count incarcerated people as residents of the prison location on Boards of County Commissioners districts in Tennessee, and discusses several ways that counties could harmonize the federal “one person one vote” principle with the unique requirements of the Tennessee State Constitution.

Introduction to the Problem

Every decade, counties in Tennessee, and across the nation, redistrict their Boards of County Commissioners to ensure equal representation in county government as required by U.S. Supreme Court precedent. When each district contains the same population, each member of the community is afforded equal representation. This undertaking, however, is vulnerable to any flaws in the data on which redistricting relies. There is a longstanding flaw in the Census that counts incarcerated people as residents of the prison location, even though almost all are barred from voting [1] and are not legal residents of the surrounding community.[2] When district population counts rely on incarcerated populations, people who live close to the prison are given more of a say in government than everybody else. The practice of using prison populations to dilute the votes of other residents is referred to as “prison-based gerrymandering.”

One of the most dramatic examples in the nation that was created after the 2000 Census was in Lake County Tennessee where 88% of the population in County Commissioner District 1 was not local residents, but incarcerated people counted in the Northwest Correctional Complex. This gave every group of 3 residents in District 1 as much say in county affairs as 25 residents in other districts. Nine other counties in Tennessee saw dramatic instances of prison-based gerrymandering, as seen in this table, from the Prison Policy Initiative report Phantom Constituents in Tennessee’s Boards of County Commissioners:[3]

The Tennessee State Constitution may prohibit the most obvious solution

The U.S. Constitution requires counties to redistrict each decade, but in most states counties are free to choose which populations to include in the population base used to draw the districts. A few states require local governments to exclude prison populations when redistricting,[4] and more than 100 counties and municipalities around the country independently choose to remove the prison populations when drawing local legislative districts.[5] To assist counties in this process, the Census Bureau recently decided to produce the Advance Group Quarters Table to make the process easier.

Prison Policy Initiative celebrates 10 year anniversary: A decade of fighting prison-based gerrymandering

This is the first of a series of posts that tell the story of how PPI grew as an organization and built a national movement to end prison-based gerrymandering.

by Peter Wagner, September 14, 2011

The Prison Policy Initiative was founded 10 years ago today with the goal of turning my academic research on what we now call prison-based gerrymandering into a national discussion of how prison counts impact redistricting. We’ve come a long way! In this and subsequent posts, I wanted to tell the story of how the Prison Policy Initiative grew as an organization and built a national movement to end prison-based gerrymandering.

Ten years ago, I was in law school wrapping up an almost year long independent study project with Professor Jim Gardner that linked felon disenfranchisement to what we now call prison-based gerrymandering. My paper, “Prisoner disenfranchisement and state legislative redistricting in New York State: Electoral appropriation and the return of the 3/5ths clause” had the potential to change how our electoral system works, but it needed an audience.

I, along with UMass PhD candidate Stephen Healy and Smith College student Sarah Kowalski, founded the Prison Policy Initiative ten years ago, building a platform to transition my academic paper into a policy paper. Six months later, I was testifying before the New York State legislature telling them about prison-based gerrymandering and urging them to start the redistricting process over with better data that met the state’s constitutional definition of residence. The legislature ignored me at the time, but nine years later, the legislature took our advice.

Over the course of 7 months, we turned my academic paper into what the Prison Policy Initiative eventually released as Importing Constituents: Prisoners and Political Clout. The biggest challenge we faced was learning how to explain the connections between the Census, redistricting, disenfranchisement and vote dilution in an accessible way. In an encounter that would change our strategy forever, we got a huge boost from a trained communicator in the media.

While Stephen, Sarah and I were working on the report, the Sentencing Project’s Marc Mauer introduced me to Jonathan Tilove, then a correspondent for Newhouse News Service covering race and immigration, who was doing a feature-length piece about how Census counts affect districting. I shared my academic paper with Jonathan and spent hours discussing it with him. He wrote an article that’s still timely today: “Minority Prison Inmates Skew Local Populations as States Redistrict,” which linked the impact of what we now call prison-based gerrymandering on state level redistricting to the impact on county and municipal redistricting.

Prior to Jonathan’s article, explaining my research used to take hours. His piece helped us succinctly explain who benefits from prison-based gerrymandering. For example, in a single clear sentence Jonathan powerfully summarized one concept that used to take me 15 minutes to explain. Many of the innovations in Jonathan’s article informed how we constructed our “Importing Constituents” report, and its discussion of intra-rural impacts inspired our strategy for the next decade.

Attica’s lessons and the urgency of ending prison-based gerrymandering

It's time to pay attention to the lessons we learned 40 years ago from the Attica prison rebellion, and recognize the critical differences between where prisoners come from and where they are confined.

by Rose Heyer and Peter Wagner, September 13, 2011

Forty years ago, thousands of people confined at the Attica prison in rural New York State rebelled, taking control of D-yard. The media was invited in to see the conditions and observe negotiations, so the whole world was watching when, forty years ago today, Governor Rockefeller ordered an assault on the prison, turning what was then the largest prison rebellion into the bloodiest. Forty-three people died, almost all from state police gunfire.

The rebellion and the investigation into its causes caused a fundamental reexamination of correctional policy throughout America, but the difficulties the state had in reforming Attica itself offers a powerful lens on the central role of geography and race in criminal justice policy.

Forty years ago, 63% of the people incarcerated at Attica were Black or Latino, but at that time there were no Blacks and only one Latino serving as guards. The prison population was 70% urban, mostly from New York City, but 80% of the guards were from rural New York.

The racial disparity between the keepers and the kept increased tensions at Attica, and gave Black and Latino prisoners a painful daily reminder that justice isn’t colorblind.

Many of the rebellion’s demands were common sense improvements to food, mail policies and rehabilitative programs, and were implemented nationwide in the years that followed. But the critical demand for more Black and Latino staff proved to be the most difficult to implement. The problem was not the hiring practices of the prisons, it was the locations of the prisons themselves. As leading scholar William Nagel explained shortly after the rebellion: “To avoid a federal Attica, the Federal Bureau of Prisons is now feverishly attempting to recruit black staff, but its task is complicated by the remoteness of its facilities.”

While existing prisons themselves are impossible to move, this lesson of Attica about the dangers of staff disparities was lost in the rush of the late 1980s and 1990s to build more prisons. Speculative ideas about rural economic development trumped safe and rehabilitative correctional policy. Two-thirds of new prisons were built in rural areas, despite the experience at Attica and despite research showing that keeping an incarcerated person close to home increases family visits and reduces the odds of recidivism or a return to prison. Thus, despite, a consensus that prisons should hire more Black and Latino staff, progress has been limited.

By 2005, (the latest year with complete comparative data), the incarcerated population at Attica had increased to 77% Black and Latino. But out of a total staff of 859, the number of blacks had only risen to 12 and the Latino staff to 9. Attica’s staff remains overwhelmingly white because Attica itself has not moved. Attica remains located in a rural, overwhelmingly white region of New York State.

Attica’s staffing pattern is dramatic, but nationally, it’s not atypical. The fact that Blacks and Latinos make up 57% of the nation’s incarcerated population but hold only 28% of the correctional jobs is further proof that the bulk of the nation’s prisons are still in communities that are very different than the communities that incarcerated people come from.

In part, these facts show how the prison system’s wild growth undermined its own goals. But from the perspective of voting rights, they tell a larger story about how mass incarceration dilutes the votes of individual Blacks and Latinos who don’t have any direct contact with the criminal justice system.