States to the Census Bureau: You created prison gerrymandering, you need to end it.

National Conference of State Legislatures report outlines experiences and recommendations from states that implemented reforms in the 2020 redistricting cycle.

by Aleks Kajstura, May 2, 2023

In a new report from the National Conference of State Legislatures (NCSL), state governments have a clear message for the Census Bureau: You created prison gerrymandering, you need to fix it.

The report examines state implementation of prison gerrymandering reforms after the 2020 census. Prison gerrymandering is a problem created by the Census Bureau’s policy of counting incarcerated people as residents of prison cells rather than their home communities. When states use those Census counts to draw legislative districts, they unintentionally distort political representation by unfairly giving people who live closest to prisons a louder voice in government, to the detriment of everyone else. To fix this problem, more than a dozen states had to adjust Census redistricting data to count incarcerated people at home after the 2020 census.

Based on interviews of redistricting officials in the 13 states that addressed prison gerrymandering when drawing new state legislative lines after the 2020 census, the report gives insights into the challenges they faced in implementing these reforms and offers recommendations to overcome those obstacles. The report makes clear that state officials recognize this problem is important, worth fixing, and the Bureau should do the fixing.

This report is well-timed. Last week Rep. Deborah Ross of North Carolina, along with Rep. Mark Pocan of Wisconsin, Rep. Emanuel Cleaver of Missouri, and Rep. Emilia Strong Sykes of Ohio, introduced a bill in Congress to end prison gerrymandering nationwide and Montana joined the growing list of states that have permanently addressed this problem. With roughly half of U.S. residents now living in a city, county, or state that has taken action to end prison gerrymandering, the emerging consensus on this issue is clear.

Everyone agrees — Census Bureau shouldn’t leave this work to the states

No recommendation looms larger in the report than the first one, which calls for the Census Bureau to take on the task of reallocating incarcerated people back to their home communities, either automatically or at the request of states. This is a roundabout way of saying what we’ve long maintained: the most efficient and effective way to solve this problem is for the Census Bureau to change its policy to count incarcerated people at their true homes.

The Census Bureau is legally required to provide data that is fit for use by states for redistricting purposes. However, the broad agreement on this issue suggests the agency is not meeting this critical obligation.

On the biggest challenges, states’ hands are tied

As the report details the challenges states faced implementing prison gerrymandering reforms, a theme quickly emerges: The biggest challenges are ones the Census Bureau created or is the agency best positioned to solve.

1. Census and other federal agencies impede state efforts

The report shows that the Bureau not only forces states to do the heavy lifting of counting incarcerated people in their home district, it and other federal agencies often inject additional speedbumps into the process.

For example, the Census Bureau frequently failed to accurately count correctional facilities, counting many facilities in the wrong place, and it failed to count some altogether. The Bureau’s bumbling in this regard was so bad this decade that it created a dedicated operation to allow governments to review its work. While these errors were particularly egregious and numerous in the pandemic-era, 2020 Census, they exist to some extent in all decades. These issues, while theoretically surmountable, add unnecessary burden to states trying to create useful redistricting data out of the Census tabulations under a tight timeline.

Additionally, many states expressed frustration with the Bureau’s lackluster geocoding tools, which are supposed to help them perform this reallocation. According to the report, the Bureau’s tool was the only one that elicited staff concerns, noting, “of the seven states that told NCSL they attempted to use the bureau’s geocoder, only one reported no issues with its user interface or concerns with its accuracy.”

The Census Bureau wasn’t the only federal agency to make states’ jobs harder. The Bureau of Prions (BOP) refused to cooperate with states, denying their requests to share address information for their residents. The report notes, “Nine of the 13 states’ reallocation policies encompassed people incarcerated at federal prisons, yet none of those states was able to receive inmate data from the Bureau of Prisons. All nine states requested data multiple times through official and unofficial channels to no avail.” The Bureau of Prisons controls the address information for about 150,000 incarcerated people nationwide.

It is important to note that the Census Bureau is the only agency able to overcome BOP stonewalling. How? By counting incarcerated people in their home communities in the first place.

2. Extra steps and unnecessary delays

Redistricting deadlines are already tight. The report shows the Census Bureau makes them even tighter by forcing states to spend precious time adjusting data to address prison gerrymandering. States recognize this is important, which is why even the state with the shortest redistricting deadline, New Jersey, which has only 30 days after the Census publishes its data to complete its redistricting, considered it worthwhile to take the time to adjust the Census data to count people at home. And even states like Montana, which made the decision to address prison gerrymandering later, ended up with redistricting data that better reflected their residents and thus was more suitable for redistricting than what the state received from the Census Bureau.

However, time is a limited resource for states; when states have to fix Census data, they have less time to focus on their primary task of drawing legislative districts. If the Bureau counted incarcerated people at home, it wouldn’t force states to choose between redoing the Census’s work and devoting more time to actual redistricting.

During this redistricting cycle, the COVID-19 pandemic caused significant delays and added uncertainty to the process. Most notably, the Census Bureau delayed data publication, further squeezing these already tight timelines. While the pandemic is unlikely to be an issue in future redistricting cycles, this experience shows why, in an unpredictable process, when time is at a premium, the Bureau should not increase the workload of the states.

While states can mitigate delays by passing legislation early in the decade to allow for data collection and planning before redistricting is looming, none of that effort should be necessary — the Census Bureau is unfairly shifting the burden of counting incarcerated people at home to the states.

3. Data quality issues magnified for states

The Census Bureau has one huge advantage that states don’t during redistricting: it has decades of experience working with this data and a full decade to prepare and troubleshoot problems it encounters; meanwhile, states are usually working on a short timeframe, measured in weeks and months.

This means the Census Bureau has usually seen and solved many of the problems states most frequently encounter, even before the data is collected. However, instead of solving these problems once, and passing that solution on to the states, it forces each state to muddle through them and develop their own process for solving them.

For example, one frequent problem states encountered was that their Departments of Corrections (DOCs) often collected and recorded race and ethnicity data differently than the Census Bureau. This is not a problem unique to DOCs and the issue of prison gerrymandering, so the Bureau has encountered it before and has a way of addressing it. However, instead of providing that solution to the states, each state had to navigate this problem on its own, expending valuable time and resources.

Similarly, states took different approaches to handling unknown or unmappable addresses. In some states, this was driven by legislative language, but in others, the task of making the decision fell to the staff.

And there were some problems states were just unable to solve, no matter how hard they tried. For example, each state only had the address data for people it incarcerated. That means states could not count their residents who were incarcerated in other states. This kind of arbitrary jurisdictional roadblock would not be an issue for the Census Bureau.

Some of these issues could be solved with additional years of address gathering (on intake at the correctional facilities), and many of the staff’s concerns about vague legislative guidance can be solved by bringing some of the language from our model legislation into the state’s law.

But in the end, the Census Bureau is better situated to count incarcerated people at home. So why is it forcing states to jump through so many hoops?

Census Bureau needs to solve the problem it created

The sheer number of states that ended prison gerrymandering was one of the most significant positive developments of the 2020 redistricting cycle. But it wasn’t without its challenges. Unlike many redistricting challenges that states face, though, prison gerrymandering was not self-inflicted and instead was created by outdated Census Bureau policies. The Census Bureau must start being more responsive to state redistricting needs.

The number of states addressing this problem will almost certainly grow by 2030. This NCSL report is powerful evidence that it is time for the Census Bureau to listen to the states and finally count incarcerated people at home.

Congresswoman Ross introduces bill to end prison gerrymandering nationwide

Federal legislation would require the Census Bureau to count incarcerated people at their true homes, rather than in prison cells.

by Danielle Squillante, April 26, 2023

Today, Congresswoman Deborah Ross from North Carolina, along with Rep. Mark Pocan of Wisconsin, Rep. Emanuel Cleaver of Missouri, and Rep. Emilia Strong Sykes of Ohio, introduced legislation to end prison gerrymandering nationwide. The bill would require the Census Bureau to count incarcerated people at their last known residence rather than their prison cell, which is where the Bureau currently counts them. When states and local governments draw political districts using Census data that counts incarcerated people in prisons, they unintentionally enhance the representation of people who live near prisons while diluting the representation of everyone else. This legislation would ensure that every community receives equal political representation.

The introduction of this bill comes on the heels of Montana — with wide bipartisan support — passing legislation to end prison gerrymandering in the state permanently. Montana Governor Greg Gianforte signed the measure — which received near-unanimous support — into law yesterday.

The Census Bureau has the ability to fix this problem on its own but thus far has stubbornly refused to do so. There are plenty of reasons for it to make this change:

• Governments are increasingly rejecting the Bureau’s flawed way of counting incarcerated people, signaling the agency is not meeting its responsibility to provide data that is ready for use by state and local governments;
• The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration;
• Communities of color are disproportionately harmed by prison gerrymandering; and
• The Bureau’s policy treats incarcerated people differently than others in similar situations.

State and local governments already recognize the importance making this change. Roughly half of the U.S. population lives in a place that has taken steps to end prison gerrymandering, with over a dozen states and over 200 local governments — both urban and rural — taking action on this issue. In the absence of a federal solution, these states and local governments have had to make corrections and adjustments to Census data to ensure it accurately reflects its population. After the 2020 redistricting process, states expressed frustration with the current process and challenges they faced, including accessing data in a timely manner, adjusting the data so it aligns with state laws, and getting address information for individuals in federal custody.

The best way to solve this problem is for the Census Bureau to change its policies to count incarcerated people at home — something it can do today without legislation. By acting to make this change now, before legislation is passed, the Bureau can develop a comprehensive research and implementation plan that ensures this transition is smooth and thoughtful. However, today’s bill shows that if the agency fails to act, lawmakers in Congress are increasingly ready to force it to finally fix this problem.

It’s official: With bipartisan support, Montana permanently ends prison gerrymandering!

The victory in Montana is a testament to the growing bipartisan and rural support for redistricting reforms that count incarcerated people in their home communities. It's time for the Census Bureau to follow suit.

April 25, 2023

After it received bipartisan and nearly unanimous support, today, Montana Governor Gianforte signed into law a bill permanently ending prison gerrymandering in the state. 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. As a result, when states use Census data to draw new legislative districts, they inadvertently give residents of districts with prisons greater political representation at the expense of everyone else.

The new law, which was sponsored by Sen. Shane Morigeau, codifies reforms implemented by the Montana Districting and Apportionment Commission when it drew new legislative maps after the 2020 Census. It requires the state’s Department of Corrections to collect and report data on the home addresses of people in its custody to the Commission, so members can use it to draw maps that accurately reflect the population of the state.

When drawing the state’s current legislative maps, the Commission had to overcome significant obstacles to address prison gerrymandering. It had to pay outside contractors to adjust the flawed data provided by the Census Bureau to count incarcerated people at their last known residence. In a bipartisan letter to the Bureau, the Commission called on the agency to adjust its residence rules to count incarcerated people at their last place of residence, so states have more complete and useful redistricting data going forward.

Montana’s bipartisan progress on this issue continues the long-standing history of rural communities calling for reforms to end prison gerrymandering. The movement to end this practice first came to prominence when Anamosa, IA — a town of roughly 5,300 residents — realized it had a City Council district in which 96% of the residents were incarcerated, making it nearly impossible to draw districts that truly represented the population of the community. Since then, lawmakers and news outlets from communities large and small have called for an end to the practice.

Since we began our national campaign to end prison gerrymandering in 2001, more than 200 local governments and over a dozen states have taken action to end the practice. Roughly half of U.S. residents now live in a city, county, or state that has taken action to end prison gerrymandering.

What are states saying about their experience addressing prison gerrymandering?

Redistricting reports and letters provide insights into the challenges states faced, and show why Census Bureau action is necessary.

by Aleks Kajstura, February 24, 2023

After more than two years and countless hours of work, the process of redrawing legislative district lines after the 2020 Census is now over. From data delays to pandemic-related challenges, it was a redistricting cycle like no other. One of the most significant positive developments, though, was the sheer number of states and local governments that took action to end prison gerrymandering — a problem created by the Census Bureau counting incarcerated people as residents of prison cells rather than their home communities. When states use those Census counts to draw legislative districts, they distort political representation by unfairly giving people who live closest to prisons a louder voice in government, to the detriment of everyone else.

During the 2010 redistricting cycle, only two states — Maryland and New York — adjusted their redistricting data to count incarcerated people at home. This cycle, 13 states counted incarcerated people at home.¹ When combined with the more than 200 cities and counties that have also addressed the problem, roughly half the country now lives in a place that has taken action to end prison gerrymandering.

Traditionally, after the end of a redistricting process, states publish reports that explain their method, highlight challenges they faced, and identify areas for improvement during the next cycle. Unfortunately, fewer states produced these reports after completing the 2020 cycle, perhaps the result of the pandemic squeezing the time and resources they had available. However, several states that published reports highlighted the issue of prison gerrymandering. These reports offer important insights into their experiences and show why the Census Bureau must change its policies before the 2030 cycle.

California

In their report, members of California’s staunchly independent Citizens Redistricting Commission note that they faced a common but serious problem in their effort to end prison gerrymandering: a lack of cooperation from the Federal Bureau of Prisons (BOP). They explained in their final report:

“The Commission also sought the last known address information for those in federal custody, but was unable to obtain the necessary information to complete the task of reallocating that population.”

California’s inability to get addresses for people incarcerated in federal facilities is not unique. BOP has stubbornly and consistently refused to share that data with any state. With 102 federal prisons in the country locking up more than 200,000 people, this refusal to cooperate with the home states of people in its custody is indefensible and creates a limit to state solutions. It’s a critical gap that can only be closed through action by federal officials, most efficiently by the Census Bureau.

Pennsylvania

Pennsylvania’s report, which was authored by the chair of its redistricting commission, devoted 10 pages to the issue of prison gerrymandering, by far the most exhaustive account in any state. In it, he touched on two areas that are a commonality across the states addressing prison gerrymandering.

First, when discussing the need to collect and process data in a timely manner, he wrote:

“My practical concern regarding data availability was heightened by the pressures tied to our constitutional deadlines, deadlines relating to the upcoming primary election schedule, and the already-dramatically delayed delivery of census data. However, after a number of interactions with the Department of Corrections, the Penn State Data Center confirmed that creating a population dataset incorporating Leader McClinton’s resolution would only result in a comparatively short delay, and that proved to be the case.”

The chair’s description of these challenges shows the fine line that states must walk if they want to adjust Census data to end prison gerrymandering. To make it work, they need the time, the will, the know-how, and the data. Fortunately, Pennsylvania had all of these things and was able to tackle this issue. But, with the consensus among states becoming clearer on this issue by the day, it raises important questions: If the Census Bureau has the ability and responsibility to provide data to the states in a usable manner, why doesn’t it? Why does it force them to jump through these hoops that take time, money, and expertise?

That’s not the only issue the Pennsylvania commission chair discussed. He also explained that one of his primary motivators for taking on this reform was the need to count people in a way that aligns with state law, noting:

“I further agreed that reallocating prisoners would be consistent with the Commonwealth’s policy as it relates to inmates and voting. In particular, S 1302 of the Voter Registration Act states, “Except as otherwise provided in this subsection, no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located. The individual shall be deemed to reside where the individual was last registered before being confined to the penal institution, or, if there was no registration prior to confinement, the individual shall be deemed to reside at the last known address prior to confinement.” 25 Pa.C.S. S 1302(a)(3). That language can be viewed as a strong and longstanding expression of legislative policy, and it would be consistent with that policy to count prisoners for redistricting purposes in the same place they could vote, if able.”

Again, this is not a problem unique to Pennsylvania; most states have similar residence laws that clarify that incarceration does not change a person’s residence. Ending prison gerrymandering ensures that redistricting data aligns with the common sense notion of where someone considers home and with legal definitions of residency.

Montana

Montana just finished its redistricting effort a few weeks ago,so it has not yet published a report on its process (and we’re not sure if it will). However, the state’s redistricting commission made its thoughts clear when it sent a letter to the Census Bureau requesting that it provide more useful redistricting data by counting incarcerated people at home in future Censuses, explaining:

“One of the challenges we face is how to account for incarcerated populations as we draw those lines. While the U.S. Census Bureau (Bureau) counts state and federal prisoners as residents of the correctional facility in which they reside on Census Day, many Montanans would prefer that these prisoners be counted as residents of the places in which they resided prior to incarceration. We are currently exploring methods that our state could use to gather that residential information and adjust the P. L. 94-171 data that we receive from the Bureau. However, we encourage the Bureau to update its concept of “usual residence” for future census operations. Specifically, we request that the Bureau count state and federal prisoners at their home addresses rather than at correctional facilities. In addition, we ask that the Bureau allow prisoners to submit race, ethnicity, and address data through forms completed by the prisoners themselves when possible. These changes would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s experience is a good example of how the Census’ current policy that puts the burden of adjusting the data on the states is not a viable solution. Despite the Commission’s unanimous and bipartisan decision to count incarcerated people at their true homes, the state still struggled to end prison gerrymandering successfully. Ultimately, its ability to address this problem was indirectly made possible by the unexpected COVID pandemic. Travel restrictions meant that funds originally budgeted for that purpose could instead be used to pay for geocoding 1,335 addresses and then adjusting the block populations accordingly in the redistricting data files. If not for COVID-imposed limitations coinciding with redistricting, the state would not have had the funds to cover such a small, simple, and basic expense.

Montana is the second state to formally request that the Census Bureau changes how it counts incarcerated people, joining Massachusetts, which which passed a resolution calling for this change in 2014.

New Mexico

While New Mexico has not yet addressed prison gerrymandering, its Citizen Redistricting Committee spent significant time on the problem and dedicated three pages of its report to the issue, including discussions on its explorations of the home address data available in the state. The Committee found that while they could get address information for most people in state prisons, the data was far more incomplete and difficult to access for people in county jails. Ultimately, rather than taking action on the problem, the Committee recommended: “that the Legislature consider legislation that will address the prison gerrymandering issue and that New Mexico take advantage of the assistance offered by the United States Bureau of Census for addressing the issue.” Although several states succeeded with last-minute efforts to count incarcerated people at home, such success is not guaranteed.

Census Bureau needs to act

States have enough preparations to worry about in the decennial ramp-up to their redistricting efforts; they shouldn’t have to also worry about quickly changing Census Bureau data to make it usable. The Census Bureau needs to provide redistricting data that is ready to use.

The 2020 redistricting cycle may prove to be a turning point in the national campaign to end prison gerrymandering. Over the last twenty years, this issue has gone from being often overlooked to being a primary and bipartisan concern of those tasked with drawing new legislative lines.

The issues states faced when addressing this problem in 2020 are not going away. And, as more and more states agree that counting incarcerated people at their homes creates more fair and equitable representation in government, the need for Census action will become even more pressing. It remains to be seen whether the Bureau will take action to produce data that is actionable and responsive to the needs of states or whether it will continue to force them to dedicate their limited time and resource to make the data usable.

With unanimous, bipartisan support, Montana ends prison gerrymandering

State asks Census Bureau to end this problem nationwide.

February 13, 2023

For immediate release — This weekend, Montana’s Districting and Apportionment Commission officially approved new legislative maps that count incarcerated people at their homes instead of in prison cells, ending prison gerrymandering in the state. During the redistricting process, ending prison gerrymandering consistently received unanimous, bipartisan support from commission members and was championed by Native American leaders in the state. Montana is the third state to address this problem without legislation¹. It is among more than a dozen states and over 200 local governments that have ended the practice.

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. As a result, when states use 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.

“The maps approved by Montana’s redistricting commission will ensure that all residents of the state have an equal voice in the decisions made by their legislative leaders,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative and a long-time advocate for reform. “This victory represents a clear, bipartisan rebuke of the broken and outdated way the Census Bureau counts incarcerated people.”

In addition to approving new legislative districts, the Commission has called on the Census Bureau to count incarcerated people at home in 2030. In a letter to the Bureau, it notes this change “would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s success was not without difficulties. As a result of the Census Bureau’s flawed method of counting incarcerated people, the Commission was forced to hire outside experts to fix the data at taxpayer expense. Even still, the state was still hampered by missing address data for many incarcerated people.

“The members of the Districting and Apportionment Commission should be commended for addressing this problem under a tight timeline and with considerable obstacles,” Kajstura said. “The Census Bureau should act on the Commission’s request to change how it counts incarcerated people as it develops rules for the 2030 Census.”

Roughly half of U.S. residents now live in a city, county, or state that has taken action to end prison gerrymandering.

Commission members also asked the state’s Congressional delegation to pass legislation to end prison gerrymandering, asked the state’s governor and Department of Corrections to collect home addresses for incarcerated people, and brought forward legislation to permanently address this issue in the state. The legislation has already passed the Senate with bipartisan support and is currently making its way through the House.

The national movement to end prison gerrymandering began in 2001 when the founders of the Prison Policy Initiative discovered that the sheer size of the prison population, combined with an outdated Census Bureau rule to distort political representation in this country. Since then, more than a dozen states and over 200 local governments have taken action to address this problem.

New York Post editorial shows diversity of support for ending prison gerrymandering

Yet another paper urges Census Bureau to put the issue at the top of its list of changes.

by Mike Wessler, December 6, 2022

As the Census Bureau wrapped up its first public comment period in its planning process for the 2030 Census, an important — and to many, unexpected — voice called on it to finally end prison gerrymandering. In an editorial, The New York Post, which is owned by News Corp — the same company that owns Fox News — called on the Bureau to finally count incarcerated people as residents of their homes instead of in their prison cells.

In its editorial, the Post notes that the Census Bureau’s practice of counting incarcerated people as residents of prisons is “a form of gerrymandering.” It explains that this practice gives extra political power to communities that host prisons at the expense of everyone else. The paper also points out that the Bureau fails to count incarcerated people the same way it does truckers, boarding-school students, military personnel, and others away from home on Census Day.

Some may be surprised that a paper like the Post, which has often taken conservative stances on issues related to crime and incarceration, would join the chorus of voices that have called for an end to prison gerrymandering. However, a closer examination of the history of this issue (including this 15-state summary of editorials and news articles presented to the Census Bureau in 2014) shows it has long received support across the country from both sides of the political spectrum, including.

• Legislation ending prison gerrymandering often garners bipartisan support in states that fall across the full spectrum of party control, from Massachusetts, to New Jersey, to Tennessee.
• More than 200 rural communities that host prisons have taken action to address this problem in their local districts; and
• And most recently, the choice to count incarcerated people at home has received unanimous and bipartisan support from Commission members in Montana.

Redistricting is a notoriously rancorous process, so how has addressing prison gerrymandering managed to avoid being bogged down in partisan political fights?

On a practical level, elected officials — particularly in local government — have experienced the distortive effects of prison gerrymandering firsthand. And, as a matter of principle, the New York Post put it bluntly and eloquently when it said the practice is “fundamentally wrong, and at odds with the Census’ duty to provide a true picture of the nation.”

In closing its editorial, the Post said, “(prison gerrymandering) belongs at the top of the list” of issues the Census Bureau should address in the 2030 count. We disagree with many of the stances the paper has taken on many issues, but on this one, they took the words right out of our mouths.

Advocates to Census Bureau: End prison gerrymandering in 2030

Roughly half the country now lives in a place that has taken action to address prison gerrymandering

by Aleks Kajstura and Mike Wessler, November 21, 2022

Last week, the Census Bureau wrapped up its first public comment period on ways it can improve the next Census. It was our first opportunity of the decade to make the case that the Bureau should finally end prison gerrymandering nationwide in 2030. Prison gerrymandering is a problem created by the Bureau counting incarcerated people as residents of prison cells rather than their home communities. Then, when states use those Census counts to draw legislative districts, they unfairly give people who live closest to prisons a louder voice in government, to the detriment of everyone else. Our official comments gave the Bureau plenty to reconsider.

In two letters — one cosigned by 35 other criminal justice and voting rights organizations and one we submitted on our own — we made comprehensive arguments why the Bureau should change its process, focusing particularly on four key areas:

1. State and local governments are rejecting the Bureau’s flawed way of counting incarcerated people

During the 2010 redistricting cycle, only two states adjusted their redistricting data to count incarcerated people at home. In 2020, 13 states¹ counted incarcerated people at home. And four additional states took other steps to reject prison gerrymandering in redistricting.² And hundreds of local jurisdictions have made changes, in the absence of state-led solutions, to address this problem.³

In total, roughly half of the US population now lives in a place that has taken action to mitigate the harms of prison gerrymandering. This number will almost certainly grow by 2030. Each of these places has had to spend additional time and money to fix this problem that the Census Bureau created and could easily resolve.

The emerging consensus on this issue is clear and serves as powerful evidence that it is time for the Census Bureau to count incarcerated people at home so the data it provides state and local governments meets their needs.

2. The Bureau’s way of counting incarcerated people ignores the realities of modern incarceration

The Census Bureau relies on its “residence rule,” which says that people should be counted where they eat and sleep most of the time, to justify counting incarcerated people as residents of prison cells. However, the Bureau’s interpretation of this rule has evolved over the decades to keep pace with a changing society. But the way they count incarcerated people is still stuck in the 1700s.

On any given day, 30% of incarcerated people are held in jail. The American Jail Association has reported that 75% of people entering U.S. jails are released within 72 hours. The average stay for someone in jail is 26 days. (Importantly, the median time served in jails is likely far shorter than 26 days, though no precise figures exist.)⁴ As a result, even a brief jail stay of just a few days had repercussions that were felt for a decade.

Prisons tend to hold people serving longer sentences than those in jails. Regardless of sentence length, though, people in prisons don’t reside (eat and sleep most of the time) at the particular correctional facility they happen to be at on Census Day. People counted at a state or federal prison on Census Day likely have not been at that facility very long, and will likely to leave it soon:

• 75% of people serve time in more than one prison facility.⁵
• 12% of people serve time in at least five facilities before returning home.⁶
• Most people incarcerated in New York State have only been at their current prison for seven months.⁷ (Other states report similar figures.⁸)

3. Communities of color are disproportionately harmed by prison gerrymandering

The Bureau’s decision to count incarcerated people as residents of a prison disproportionately harms communities that are already hit hardest by incarceration and marginalized because of their race, gender, sexual orientation, class, and other defining characteristics. The Bureau’s own data shows incarceration rates are not even across all populations: Black people, Native American people, Hispanic/Latinx people, and people of two or more races are disproportionately incarcerated.⁹

The Census Bureau already has a stubbornly persistent problem of undercounting these disadvantaged communities.¹⁰ By counting incarcerated people from these communities as residents of prison cells, rather than their homes, the Bureau exacerbates this existing problem by further undercounting these areas.

4. Incarcerated people are treated differently than others in similar situations

Counting incarcerated people at home would align residence rules with how the Census Bureau counts others in similar transitory situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility.

The most glaring example of this double-standard involves kids who are away from home on Census Day: Kids at boarding schools are counted at their parents’ addresses, while kids who have even a short stay at a juvenile correctional facility are counted at the location of the facility.

The Census Bureau uses the length of time someone spends in a single location as a starting point for applying the residence rule, but it often takes other factors into account. For most people who are away for long times, the Bureau recognizes the importance of family and community ties when it counts them at home (e.g., truck drivers, boarding school students, Congress, military personnel) but fails to apply the same thinking to incarcerated people.

What’s next?

Once it reviews them, the Bureau will eventually publish all submissions it received during this public comment period. However we don’t know exactly when that will be. While we wait, we’re collecting comments from other organizations on our website to make them available to stakeholders and decisionmakers earlier. If your organization submitted a comment calling for the Bureau to end prison gerrymandering, send it to us and we’ll add it to the collection for 2022.

As we work to end prison gerrymandering nationwide, state governments should continue to move forward with their efforts to end the practice, as well. For most, this means collecting data on where people in their prisons call home or passing legislation to require state and local redistricting bodies to count incarcerated people at home when they draw new district lines. Taking these steps will put additional pressure on the Bureau to change its policies (and, in the event the Bureau doesn’t make this change, ensure these state and local governments are ready to fix this problem on their own).

This public comment period is the first step in what will be a lengthy process, but we’re in it for the long haul, and momentum is on our side.

Our first chance to end prison gerrymandering in the 2030 Census

The 2030 Census should count incarcerated people at home; tell them to start that change now.

by Aleks Kajstura, August 31, 2022

The next Census is still eight years away but the work to prepare for it has already begun, and so have our efforts to convince the Census Bureau to finally count incarcerated people as residents of their homes instead of prison cells. Earlier this month, the Bureau asked for public comment on areas it can improve upon in the 2030 Census. This is our first chance to ask the Bureau to build on its progress during the 2020 Census, and finally end this problem nationwide. And there are good reasons for it to do so. Prison gerrymandering is a relatively new problem, created by exploding prison populations and an outdated way that the Census Bureau counts incarcerated people, and it creates significant challenges for the rapidly growing list of state and local governments working to fix this problem.

The problem

The Bureau’s practice of counting incarcerated people as residents of a prison, rather than at their homes shifts political representation to people who live near correctional facilities, at the expense of residents who live further away. (Importantly, this does not impact funding distribution.) In doing this, the Census Bureau gives people who live close to prisons a louder voice in government and the decisions made in their state and community.

A bit of history

We’re often asked, “If the Census Bureau has counted incarcerated people this way since the country was founded, why change now?” The simple answer is: the nation’s 40-year failed experiment with mass incarceration changed everything.

The prison boom began in the 1970s, but its impact on the 1980 Census was modest from a national viewpoint. In fact, the Bureau didn’t even mention incarcerated household members on the census form until the 1990 Census. But by 2000, the incarceration rate was more than four times higher than two decades earlier, and this problem was unavoidable. State and local officials and advocates began to notice that areas containing prisons began to “grow”, and so did their influence in government.

The Bureau’s application of its “residence rule” has failed to keep up with an evolving country and its needs

The Census Bureau often cites its interpretation of its “residence rule” — which says people should be counted where they eat and sleep most of the time — to justify counting incarcerated people in prison cells. However, its interpretation has evolved over the decades to keep pace with a changing society, however the way they count incarcerated people is still stuck in the 1700s.

Common assumptions about incarceration haven’t caught up with modern realities for incarcerated people. While the Census Bureau continues to count incarcerated people at their correctional facility for purposes of the census, the fact is, between short sentences and frequent transfers between facilities, many people in prison and jail do not actually live and sleep most of the time at the place they are incarcerated on Census day.

The way the Census counts incarcerated people is also out of step with how it applies the residence rule to other people in transitory living situations. For example, someone who is away from home for a military deployment for a year is counted at their home address, but someone incarcerated for just a few months is counted at the location of the correctional facility. Kids who live at boarding school are counted at their parents’ address while kids who have a short stay at a juvenile correctional facility are counted at the location of the facility.

The amount of time spent in a single location is a starting point, not an end-all-be-all for how the Census Bureau applies its residence rules. Most people who are away from home on Census day — even if they’re gone for a significant amount of time — are counted at home. The Bureau does this because it recognizes a person’s ties to their home and community are what really define a residence. It relies on family and community ties to count truck drivers, boarding school students, Congressional members, and military personnel at home. But the Census Bureau fails to apply the same rules to incarcerated people.

The Bureau is failing to keep up with evolving redistricting data needs

State and local governments — the most important redistricting data users — recognize how outdated the Census Bureau’s methodology is. During the 2000 redistricting cycle, many counties and municipalities that contained large prisons adjusted the data they received from the Census Bureau in order to avoid prison gerrymandering when drawing district lines. During the 2010 redistricting cycle, two states and over 200 local governments had taken action to fix this problem; and by the 2020 cycle, an additional 11 states had joined them. Altogether, nearly half of the country now lives in a city, county, or state that has taken on the burden of correcting the data it received from the Census to use in redistricting.

The Census Bureau has a duty to solve this problem. It is required to provide data that is fit for use in redistricting, a standard it is not meeting. While many states counties, and cities have taken it upon themselves to fix this problem, the Census Bureau, is the only agency that can provide a complete solution, and can do so far more efficiently than state or local governments, which often run up against roadblocks that the Census Bureau would not. For example, counting people incarcerated across state or county lines, matching Census race and ethnicity categories, and counting people in Bureau of Prisons facilities — an agency that has refused to cooperate with states. Additionally, there are states like Massachusetts where the state constitution prohibits unilateral action, Massachusetts explained in their 2014 resolution urging the Census Bureau to change the way it counts incarcerated people. States have shown incarcerated people can be counted at home, but the Census needs to take this proof of concept and apply it to its own count.

Looking to 2030

As the Census Bureau begins to plan for 2030, there are good reasons for it to change how it counts incarcerated people. By counting people as residents of a prison cell, instead of their home communities, prison gerrymandering reduces the say that most communities — particularly those hit hardest by mass incarceration — have in their government. The Bureau’s interpretation of its residence rules is out of date and treats incarcerated people differently than many other similarly situated groups. And finally, the Bureau is falling behind the emerging consensus on this issue; forcing hundreds of local governments and over a dozen states to take ad hoc steps to correct the redistricting data on their own. It is time for the Census Bureau finally count incarcerated people at home in the 2030 Census.

Now is our first opportunity to make our voice heard. We hope you’ll consider doing so.

How to submit your comments to the Census Bureau

This public comment period is the first chance members of the public have to call for an end to prison gerrymandering nationwide in the 2030 Census. As the Census Bureau explains:

As part of the planning efforts, the public is invited to share feedback on how the Census Bureau can improve the public’s experience during the 2030 Census. With this input, the Census Bureau aims to better reach and count historically undercounted people, overcome challenges and encourage everyone to respond to the 2030 Census. Public input is needed now so it can inform the Census Bureau’s decisions on the initial operational design, along with the findings of dozens of research projects underway.

You can send your comments in two ways:

• Email the Census Bureau at DCMD.2030.Research@census.gov. Please include “FRN Response” in the subject line.
• Go online to the online submission form. Then, click the green button “Submit a Formal Comment”.

Comments are Due November 15th.
Note: The Census Bureau asks that you clearly identify your comment with one of their provided topic choices. I suggest using “Reaching and motivating everyone” for comments on ending prison gerrymandering, but if your comment delves into the weeds of technical aspects of the count, you might also consider “New data sources”.

What’s coming up next?

Right now, the Census Bureau is in the early stages of planning for the 2030 Census. We expect the Bureau to focus deeper on issues related to prison gerrymandering in the next few years, but the problem cannot be ignored in the meantime.

Before this November 15 deadline, the Prison Policy Initiative will publish additional resources like this fact sheet; and we encourage you to check out our pathfinder guide to resources available on our site. And in the year ahead you can expect us to publish other fact sheets and explainers to prepare for the next stages of this effort.

Washington ends prison gerrymandering in local government districts

New law builds on the previous measure that ended the practice in state legislative and congressional redistricting.

by Mike Wessler, March 16, 2022

Last week, Washington Gov. Jay Inslee signed a bill that strengthens the state’s anti-prison gerrymandering law by making it apply to city, county, and other local governments when they redistrict. Washington was the fifth state to end the practice in state legislative and congressional redistricting. By extending this law to local governments, Washington is now among the gold standard states that have ended prison gerrymandering.

Prison gerrymandering occurs because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. Most people in prison don’t come from communities where they are incarcerated and return to their home community after release. Because of their small size, local governments feel some of the most dramatic impacts of prison gerrymandering. When a city or county includes a prison’s population when redistricting, it gives residents who live closest to the prison significantly more political clout and diminishes the residents’ voices in other districts.

Under the law, when new census population data is released every ten years, the state redistricting commission will adjust the data to count incarcerated people in their home communities rather than where they are incarcerated. Local governments will then use this adjusted data to draw their new district lines rather than the data provided directly by the Census Bureau. The legislation applies only to redistricting and will not affect federal or state funding distributions.

While the law will not impact the current redistricting process, cities and counties that have not yet drawn new district lines can take steps on their own to draw more fair districts that do not use incarcerated people to pad populations. After the 2010 census, at least three Washington counties took part in prison gerrymandering.

Prison gerrymandering is a problem that can best be solved if the Census Bureau changed its policy to count incarcerated people as residents of their home communities rather than a prison cell. Roughly half of all residents of the United States now live in a city, county, or state that has addressed prison gerrymandering. The actions by Washington to strengthen its anti-prison gerrymandering laws add to the growing consensus that the Census Bureau should end this unjust practice once and for all.

Rhode Island becomes latest state to address prison gerrymandering

Gov. Dan McKee signed into law new legislative districts that count many incarcerated people in their home districts.

February 23, 2022

Another state has moved to address prison gerrymandering. Last week, Rhode Island Governor Dan McKee signed into law new legislative and congressional districts that change how the state counts incarcerated people. Rhode Island is the second state whose redistricting commission has taken the initiative to address prison gerrymandering (after Pennsylvania last year). Eleven other states have also ended the practice through legislation. All told, roughly half of all U.S. residents now live in a state, county, or municipality that has rejected prison gerrymandering.

Prison gerrymandering is a problem created because the Census Bureau erroneously counts all incarcerated people as residents of their prison cell rather than their home community. Most people in prison come from districts other than those in which they are incarcerated and return to those home districts after release. Incarcerated people typically have strong attachments to their home communities but no attachment to the community surrounding the prison. As a result, when states use Census counts to draw legislative districts, they inappropriately enhance the representation of people living in districts containing prisons.

However, unlike other states that have taken action, Rhode Island did not completely end prison gerrymandering. Instead of counting all incarcerated people at home when drawing new districts, the redistricting commission counted only people who, on Census Day (April 1, 2020), were either not yet sentenced or had less than two years remaining on their sentence. As a result, the state’s new legislative maps count only 44% of incarcerated people in their correct districts. (The change will not affect federal or state funding distributions.)

“These new districts are an important step in the fight to end prison gerrymandering in Rhode Island, but the work is not over. Lawmakers should finish the job of ending this injustice by passing legislation that will ensure the state counts all incarcerated people in their home districts when new districts are drawn in ten years,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “Rhode Island’s actions are yet another reason for the Census Bureau to join the growing consensus on the issue and count incarcerated people as residents of their homes, not their prison cells.”

Prison gerrymandering has a particularly significant impact on communities of color in Rhode Island, where black people are incarcerated at a rate nine times higher than non-Hispanic whites, and Latinos are incarcerated at a rate three times higher than non-Hispanic whites.

The national movement to end prison gerrymandering began in 2001 when the founders of the Prison Policy Initiative discovered that the sheer size of the prison population was combining with an outdated Census Bureau rule to distort political representation in this country. Since then, more than a dozen states and over 200 local governments have taken action to address this problem.