Maryland enacts law to count incarcerated people at their home addresses

First-in-nation law will improve fairness and accuracy of the Census data used for redistricting.

April 13, 2010

First-in-nation law will improve fairness and accuracy of the Census data used for redistricting

FOR IMMEDIATE RELEASE
Contact: Peter Wagner, PPI, (413) 527-0845
Tim Rusch, Demos, 212 389-1407
Brenda Wright, Demos, 617 232 5885 ext. 13

April 13, 2010 – Today, Governor Martin O’Malley signed into law a bill ensuring that incarcerated persons will be counted as residents of their home addresses when new state and local legislative districts are drawn in Maryland.

The U.S. Census counts incarcerated people as residents of the prison location. When state and local government bodies use Census counts to draw legislative districts, they unintentionally enhance the weight of a vote cast in districts that contain prisons at the expense of all other districts in the state. Maryland is the first state to pledge to collect the home addresses of incarcerated people and correct the data state-wide.

The new law will help Maryland correct past distortions in representation caused by counting incarcerated persons as residents of prisons, such as the following:

• 18% of the population currently credited to House of Delegates District 2B (near Hagerstown) is actually incarcerated people from other parts of the state. In effect, by using uncorrected Census data to draw legislative districts, the legislature granted every group of 82 residents in this districts as much political influence as 100 residents of every other district.
• In Somerset County, a large prison is 64% of the 1st County Commission District, giving each resident in that district 2.7 times as much influence as residents in other districts. Even more troubling is that by including the prison population as “residents” in county districts, the county has been unable to draw an effective majority-African American district and has had no African-American elected to county government, despite settlement of a vote dilution lawsuit in the 1980s.

The problem is national as well. One legislative district in New York includes 7% prisoners; a legislative district in Texas includes 12% prisoners; and 15% of one Montana district are prisoners imported from other parts of the state. Indeed, the 2010 Census will find five times as many people in prison as it did just three decades ago. To address this problem, eight other states have similar bills pending in the current session or being prepared for reintroduction in the next legislative session: Connecticut, Florida, Illinois, Minnesota, New York, Oregon, Rhode Island, and Wisconsin.

“The Maryland legislature has taken a much-needed step to ensure fairness in redistricting and reflect incarcerated populations in a more accurate way. Maryland’s action should pave the way for other states to end the distortions caused by counting incarcerated persons in the wrong place,” said Peter Wagner, Executive Director of the Prison Policy Initiative.

“Maryland’s ‘No Representation without Population’ Act will bring the state’s redistricting practices in line with the rules Maryland uses for determining legal residence of incarcerated persons for other purposes. We applaud this common-sense solution to a growing problem of fairness in representation,” said Brenda Wright, Director of the Democracy Program at Demos.

The legislation, passed as H.B. 496 and S.B.400, applies only to redistricting and would not affect federal funding distributions.

The Prison Policy Initiative and Demos have a national project to end prison-based gerrymandering, seeking to change how the U.S. Census counts incarcerated people and how states and local governments use prison counts when drawing districts. The two groups provided technical assistance to the American Civil Liberties Union (ACLU) of Maryland and the Legislative Black Caucus of Maryland who led this effort.

In addition, Mr. Wagner and Ms. Wright both testified in support of Maryland’s new law at legislative hearings this spring. Their testimony pointed out that HB496/SB400 has precedent in the practice of more than 100 rural counties around the country that currently revise the Census Bureau’s prison counts for internal districting purposes, and in the laws of states such as Kansas that adjust the Census for other purposes.

PPI and Demos long have advocated for the Census Bureau to change its practices so that incarcerated persons would be counted at their home residences on a nationwide basis. While it is too late for that change to be made for the 2010 Census, the Census Bureau’s recent decision to accelerate the release of its prison count data so that states can more readily identify prison populations in the Census will be helpful to states such as Maryland that wish to make their own adjustments.

PPI and Demos applaud the lead sponsors of the legislation, Delegate Joseline Pena-Melnyk and Senator Catherine Pugh, who deserve special credit for their leadership on this issue. Although both represent legislative districts that contain large prison populations currently counted as part of their districts, both recognized that the issue of fairness and accuracy in statewide redistricting should take precedence over individual concerns. PPI and Demos are also encouraged by the bi-partisan support for the bill including that of Republican Senators J. Lowell Stoltzfus and Donald F. Munson.

Valley Advocate profiles our work

The Valley Advocate profiles our work on prison-based gerrymandering.

by Peter Wagner, April 9, 2010

Maureen Turner at The Valley Advocate has written an excellent profile of our work:

Jail and the Census: A Change That Counts, Easthampton’s Prison Policy Initiative scores a victory for fair political representation

I particularly liked how she explained the significance of the Census Bureau’s decision to publish prison counts earlier:

That might not sound like much — a government agency releasing a relatively small amount of its collected data a little earlier than usual. But the consequences will be significant, making it easier for states to ensure that their legislative districts are fair representations of actual populations.

And it wasn’t just those residents who were poorly served by the formula. Because the prisoners were not counted at the homes where they lived before their arrest — and where, it can be assumed, many would return upon their release — those communities also suffered, as their population count, for the purpose of distributing political representation, shrank.

While in an ideal world, Wagner said, the Census would have made a much broader chang e– to counting prisoners at their previous home addresses — such a policy would have had to be created years ago to be ready for the 2010 count. The early release of data, while not a complete fix, is still a welcomed one, he said: “It will solve a lot of people’s problems, and there was still time to do it.”

Fixing the count is easier and more necessary than it sounds

It is neither impractical nor illegal to adjust the Census Bureau's count of incarcerated people; and the length of prison sentences is not relevant to state residence law.

by Peter Wagner, April 5, 2010

R.G. Ratcliffe has a great column about prison based gerrymandering in Texas that quotes some common misunderstandings about the issue that I’d like to clarify. First, it is neither impractical nor illegal to adjust the Census Bureau’s count of incarcerated people, and, second, the length of prison sentences is not relevant to state residence law.

It is neither impractical nor unlawful to adjust Census counts

“Wagner said that for the purposes of drawing legislative and congressional district boundaries in 2011, the Legislature should treat prison inmates as “address unknown.” He said at least three Texas counties do not include prison populations when drawing county commissioner precinct lines.

Census Bureau’s prison count won’t mean funding windfall

Census count of prison populations distorts redistricting, but has little impact on the distribution of federal funding. Democracy suffers while some falsely claim funding impact.

by Aleks Kajstura, April 2, 2010

Despite our best efforts, media stories keep on appearing that claim that the Census Bureau’s prison count means a huge windfall of federal funds to towns that host prisons, while depriving high-incarceration communities of those same funds. These stories are based on a fundamental misunderstanding of how federal funding streams work and an overly simplistic reading of the Census Bureau’s call to participate in the Census.

The Census Bureau is correct that the data it collects “helps to determine how more than $400 billion dollars of federal funding each year is spent on infrastructure and services.” Some journalists insist on dividing that $400 billion figure by the population of the country to determine the importance of returning a Census form. The actual amount varies by state, but $1,100 is acceptable estimate when judging the economic benefits of filling out a census form. (See, “Counting for Dollars: The Role of the Decennial Census in the Distribution of Federal Funds,” by Andrew Reamer, The Brookings Institution.)

It is simply not accurate to apply an estimate of the economic benefit of participation in the Census to the economic impact of counting incarcerated people in the wrong part of a state. Why? Most federal funding is distributed in the form of block grants to states and these are unaffected by where within any given state people are counted. And much of the rest, it turns out, is distributed by methods far too sophisticated to be fooled by where the Census counts incarcerated people. To say that $400 billion, divided by the current US population means that every person brings about $1,300 in federal money to a community is over-simplified to the point that it is simply incorrect.

The bulk (74%) of that $400 billion is block grants to states for highways and Medicaid reimbursement. Almost all of people are incarcerated in their state of residence, so these funds are entirely unaffected. Other programs are too sophisticated to be fooled by the prison miscount. After highways and Medicaid, the next largest program is federal subsidies to low income schools. This formula used in urban areas is based on the number of poor children in the Census, and, in rural areas, the number of children enrolled in a subsidized school lunch program. In either case, the program for subsidizing poor schools distributes its funds in a way that is entirely unaffected by where incarcerated people are counted.

What’s affected? Very small federal and state programs. And ironically, most of these programs tend to be in funds that are destined for rural areas anyway. A tiny flaw in the Rural Appalachian Development Fund, for example, allows rural Appalachian communities with prisons to get an extra share of funds destined for other rural Appalachian communities.

And a tiny flaw in Dutchess County New York’s method of distributing county sales tax to towns costs 18 towns without prisons a few thousand dollars each annually, to the benefit of the 2 towns with prisons. But not a dime of this belongs in the urban areas that most people in prison call home. It’s rural money that’s being misdirected among rural communities.

Some of these formulas should be fixed. And, over time, they probably will be. But because each rural community that loses under the system loses such a small amount, these communities have found it hard to prioritize.

And to my frustration, the funding argument is just a distraction from the very real problem of prison-based gerrymandering. Counting people in prison has a big effect on electoral representation at the state and county level. I’ve been helping to document this at Prison Policy Initiative for years. The more we study the problem, the deeper the electoral problem goes. First it was state districts being distorted in violation of the Supreme Court’s “One Person, One Vote” rule. Then we discovered that legislatures were violating their own state constitutions by using the Census Bureau’s prison counts to draw districts. We’ve drilled down to county, city and town districts finding even larger impacts.

In contrast, the more we look at the funding impacts, the less significant we find the effects to be. The amounts at stake are very small, the funds don’t move in the way most people assume, and the solutions lie more in fixing loopholes in complex funding formulas, than the Census.

But prison-based gerrymandering? That’s a straightforward problem, with a straightforward solution. There are proposals in 7 states to change where incarcerated people are counted for redistricting purposes. Almost anyone who considers these solutions can get behind them.

I know it’s hard to explain how our government works. But unlike the claims that poor rural communities are getting rich off of the Census Bureau’s prison miscount, the facts behind the political effects of the prison miscount are compelling.

Similarly, state-level campaigns to fix the prison census for redistricting purposes are being hit by ridiculous claims that somehow state-level legislation will change federal funding formulas. State (or federal) funding decisions are not based on redistricting data.

Rhode Island mayor: Prisoners count as residents when it helps me, not when it helps them

Mayor sings one tune when the prison miscount benefits the town, and another when a 2nd grader wants to attend school where her father is locked up.

by Sara Mayeux, March 31, 2010

Here’s Mayor Allan Fung, explaining why he thinks the 3,000 inmates at the ACI prison should be counted as residents of Cranston, Rhode Island, come Census time:

“Those that are incarcerated at the ACI, particularly those that are here for a long sentence, have an impact on the services that we provide. Our police, fire and rescue make multiple runs to the prison. Under the proposal, none of these people would be counted for Cranston unless they lived here previously,” he said.

“There is nothing to even show that a person who finishes his or her sentence returns to their prior address. I cannot support a proposal that may disadvantage Cranston’s ability to get sorely needed resources.”

This quote certainly suggests that Mayor Fung would consider ACI inmate Joey Correa to be a Cranston resident. Yet, when Correa’s nine-year-old daughter recently asserted her right to attend a Cranston school, Mayor Fung suddenly switched his tune, telling reporters from a local TV station:

“This individual is not a taxpayer to the city of Cranston, he’s in a situation where he’s incarcerated.”

50-state guide to “Fixing prison-based gerrymandering after the 2010 Census”

New 50 state guide released: How the Census Bureau's prison miscount harms democracy, with info on prison residence law and the status of reform efforts.

by Peter Wagner, March 22, 2010

The 2010 Census will be counting more than 2 million incarcerated people in the wrong place. The laws of most states say that a prison cell is a not a residence, but the Census Bureau assigns incarcerated people to the prison location, not their home addresses. When state and local governments use this data to draw legislative districts, they unconstitutionally enhance the weight of a vote cast in districts that contain prisons and dilute those votes cast in every other district.

Our new 50 state guide, Fixing prison-based gerrymandering after the 2010 Census, introduces the problem, the solutions, and provides state-by-state information on how the prison miscount harms state and local democracy, how each state defines residence for incarcerated people, and the status of reform efforts.

Census empowers, does not dictate data use

Recent media coverage reveals a misconception about basic principles of our electoral system. The Census Bureau does not have a “new policy” regarding populations used in redistricting.

by Aleks Kajstura, March 8, 2010

Recent media coverage makes it clear that there is a misconception about basic principles of our electoral system. Many people are claiming that the Census Bureau has changed some policy and is now allowing states to exclude certain populations in the redistricting process.

Actually, the Census Bureau has no authority over districting. The Census Bureau does provide data that states can use in their individual redistricting processes. States use this data because it is easily accessible and often the only or best data available. States were never required to use this data. (Next week I will blog about a court case that expressly prohibited using Census data where using the data would have lead to unequal districts.)

The Census Bureau recently announced that it will publish group quarters population data in May 2011 (prisons are one kind of group quarters). If they wish, the states can adjust their populations, taking into consideration the location and population of prisons, when redistricting. The Bureau is simply making an existing process easier. A few states have already required their counties to make this exact adjustment in their populations when redistricting, and many more counties made such adjustments on their own.

The Census Bureau was simply responding to a need that was already there. The Census Bureau has no “new policy” regarding populations used for redistricting; that choice is, and always has been, reserved by each state and local goverment.

Census Bureau Director blogs: “So, How do You Handle Prisons?”

Census Bureau Director Robert Groves writes on his blog about how incarcerated people are counted in the Census.

by Peter Wagner, March 2, 2010

Census Bureau Director Robert Groves has a new blog post: So, How do You Handle Prisons? that addresses how the Bureau counts people in prison. He discusses the mechanics of the count, the controversy about where incarcerated people should be counted, and some of the logistical and conceptual challenges to fairly and accurately counting incarcerated people in the right spot.

Who are the real victims of prison-based gerrymandering?

Hint: It's not urban people.

by Peter Wagner, February 24, 2010

I find it disturbing to see prison-based gerrymandering portrayed as an urban vs rural issue. Why? Because the practice of padding some legislative districts with large prisons dilutes the votes of everyone who does not live next to a large prison. Rural and urban communities suffer about the same.

True, urban communities should have been credited with their true population, but the way the math works out, they suffer almost the exact same vote dilution as rural communities that do not contain prisons.

Democracy is not a zero sum game, and when the data that democracy depends on is flawed, even those who benefit in one way lose in another. The residents of some state senate districts, for example, get extra representation when their leaders claim incarcerated people as residents; but they often suffer in local government. For example, most of the residents of Rome New York have less access to city government than they should, because half of one city council district is incarcerated people who are not from Rome.

There are additional harms that I’m not going to address fully in this post. For example, padding a district with incarcerated people distorts the priorities of the “benefiting” district, dis-aligning the priorities of the district’s representatives and its actual residents. But like I said, prison-based gerrymandering is not an urban vs. rural issue.

Democracy is not a zero-sum game

We have to stop framing census reform as a zero-sum game of funding. It's a democracy issue about the state constitution, and its an issue where almost everyone has something to gain from reform. Partisan and regional conflict makes for great press, but it's not going to build a better society.

by Peter Wagner, February 16, 2010

Professor Jamie Baker Roskie asks on the Land Use Prof Blog if there is a solution to the urban/rural and black/white split over how the Census Bureau should count incarcerated people. Introduced to the issue by an NPR story that (with the help of partisans in both places) sets the issue as a fight over limited resources, she asks if “some happy medium can be found”.

It’s a great question, and the answer is easy:

We have to stop framing census reform as a zero-sum game of funding. It’s a democracy issue about the state constitution, and its an issue where almost everyone has something to gain from reform. Partisan and regional conflict makes for great press, but it’s not going to build a better society.

See my comment on her post for my full explanation.