Texas bill shows states could correct Census counts of prisoners

by Peter Wagner, July 19, 2004

As I wrote in May, there are 3 ways to fix how the U.S. Census counts prisoners:

1. The Census could change its methodology
2. States could adjust the counts after the fact
3. States can ignore the federal Census and bring back their state Censuses.

The first option is the best, but the others are far more practical than they may sound at first glance. One state already does something quite similar: Kansas adjusts how students and the military are counted.

In 2001, Texas Representative Harold Dutton introduced a bill to restore Texas prisoners to their home addresses prior to redistricting. Although the bill was not ultimately successful, the bill was approved by the Elections committee and does illustrate one approach that could be taken by states if the Census Bureau does not change its policy.

The bill would have required the operators of all public and private prisons in Texas to submit to the Texas Controller a report containing the name, age, gender, ethnicity and pre-incarceration address of each person counted in the Census as a resident of the prison. The Controller would then deduct these persons from the Census tracts with the prisons and restore them to their home Census tracts.

Census Bureau Policy Costs Ohio’s Cities Political Power

by Peter Wagner, July 12, 2004

As described in last week’s column, how the Census Bureau counts prisoners undercounts Ohio’s urban areas while boosting the population of the rural areas that host the prisons. Also skewed is how much representation each region receives in the state legislature, because Ohio relies on Census Bureau data to redraw its state legislative boundaries

States are required to redraw their legislative boundaries each decade so that each will contain the same number of people as required by the 14th Amendment’s One Person One Vote principle. Equally sized districts ensure that each resident has an equal access to government regardless of where she or he lives.

The Census counts everyone including people who can’t vote such as prisoners and children. But children are at least a part of the surrounding community and share some common interests with it. Children can with some confidence rely on their neighboring adults to represent their interests. But prison communities are often very closely aligned with the prison industry and are likely to be quite dissimilar to the communities that the prisoners came from.

So while prisoners are barred from voting for or against the legislator that “represents” them while they are incarcerated, Ohio restores a prisoner’s right to vote on the day that he or she is released. But that is also the same day that the former prisoner will be getting on a bus to leave the prison district and return back home.

Census Bureau Policy Costs Ohio’s Cities Population

by Peter Wagner, July 5, 2004

The Census Bureau counts prisoners not at their homes but as if they were residents of the town that contained the prison. This administrative quirk reduces the population of the urban communities where most prisoners originate and swells the population of the rural communities that house prisons. Ohio now incarcerates more than 3 times as many people as it did as recently as 1980, making what would once be a trivial issue into a critical one.

Urban areas suffer, prison counties gain

All of Ohio’s major cities see a reduction in their Census population from how prisoners are counted. Although there are small state prison facilities in Cuyahoga County (Cleveland) Montgomery County (Dayton) and Franklin County (Columbus) the small gain is overshadowed by the loss. Cuyahoga County has 11,167 residents in prison with 10,441 incarcerated in other counties. The Census shows Hamilton County with 5,235 fewer people. This population is instead credited to the counties that contain the prisons. Pickaway County has a Census population of 53,437, but 5,583 of those people are actually prisoners from other parts of the state.

Thankfully, Census Bureau policy on how to count the population is not fixed, instead it responds to changing needs. When evolving demographics meant more college students studying far from home and more Americans living overseas, the Census policy changed in order to more accurately reflect how many Americans were living where. Today, the growth in the prisoner population requires the Census to update its methodology again. Otherwise, Ohio’s urban communities are going to find themselves shortchanged in the 2010 Census.

Figure 1. Ohio’s largest cities lose sizable population to a Census Bureau quirk that counts the incarcerated as if they lived in their remote prison cells.

Source: Peter Wagner and Rose Heyer Importing Constituents: Prisoners and Political Clout in Ohio

Call your cell a residence?: Do not pass “GO”, go directly to ….

by Peter Wagner, June 28, 2004

In 1894, Michael Cady tried to register to vote using his address at the Tombs Jail in New York City. Jail inmates are allowed to vote, but he was convicted for illegal registration because the NY Constitution says that

“no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

The prosecution’s theory was that while Cady was allowed to vote, he could not vote in the prison district. Even though Cady was planning on staying at the Tombs forever, Cady must have — the prosecution argued — lived somewhere else before.

The highest court in New York agreed:

“The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment … go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.”

When counting the population of each state, the federal Census counts the nation’s mostly urban prisoners as if they were residents of the rural towns with the prisons. When the Census first started in 1790 with the purpose of dividing Congressional seats among the states, that probably made sense. But today one of the biggest users of Census data is state legislatures that must redraw their legislative districts each decade to comply with the Supreme Court’s “One Person One Vote” rule of equally sized districts. Relying on the Census Bureau to count the population sounds convenient and fair, but until the Census Bureau changes how it counts prisoners, using the federal Census data might not be the best way to insure that districts comply with the requirements of the 14th Amendment and how many state constitutions define residence.

If calling your jail cell your residence gets you sent to prison, shouldn’t it also be illegal for rural legislators to call prisoners their “constituents”?

Read more about Michael Cady in Importing Constituents: Prisoner and Political Clout in New York.

14th Amendment is an unintended casualty of Census Bureau’s method of counting prisoners

by Peter Wagner, June 21, 2004

Each decade, the U.S. Census counts the population and then gives the counts to state legislatures for use in redistricting. Legislators take the data and redraw their districts so that each contains the same number of people. Equally sized districts ensure that each person in each district has an equal access to government. This practice is known as the “One Person One Vote” rule and has been the law of the land since the Supreme Court interpreted the 14th Amendment of the Constitution to require districts of equally sized populations in the 1963 case Reynolds v. Sims.

The problem? Based on a methodology developed more than two centuries ago, the Census Bureau counts the nation’s now 2 million prisoners as if they lived at the prison. The method of counting other “special populations” has evolved over time, but the way that prisoners have been counted has gone unquestioned until recently.

Prisoners can’t vote and they are residents not of the prison town but of communities often very far and very different from the prison. While prisons are unquestionably big industries in many rural areas, the temporary physical presence of the prisoners does not make prisoners a part of the prison town in any legal or social sense.

Crediting rural towns with the prison population reduces the number of real rural residents required for a district. This boosts the weight of rural votes while diluting the strength of a vote in the prisoner’s home district.

Prison town legislators represent prisoners’ interests? Not quite.

by Peter Wagner, June 14, 2004

On June 7, talks between the New York State Senate and the Assembly on how to best reform the draconian Rockefeller Drug Laws broke down. Publicly, the dispute is over ideological disagreements, but an obscure Census quirk that counts prisoners as residents of the prison’s legislative district may be responsible for distorting how the debate is framed.

The Assembly wanted to reduce a broad range of drug sentences while the Senate wanted to focus only on the most extreme sentences. Previous columns (May 24, 2004 and December 1, 2003) have profiled the district of the Senator’s lead negotiator, Dale Volker. This column examines the district of another member of the Senate’s delegation to the conference committee, Crime Committee Chair Senator Michael Nozzolio.

The 54th District Seneca Falls Republican explained the Senate’s perspective at the start of the meetings: “Our focus is on the victim, not the drug dealer.” The Assembly members took the opposite approach, arguing that drug crimes are victimless crimes and should have sentences shorter than those imposed for violent acts.

An analysis of Senator Nozzolio’s district suggests that his opposition to a thorough repeal of the Rockefeller Drug Laws may not lie just in ideology but in an obscure Census quirk that counts prisoners as if they were residents of the prison town. Because 65.5% of New York State’s prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This swells the political power of upstate legislators and their real constituents while diluting the clout of New York City’s residents.

Local officials tell prisoners: “You don’t live here”

by Peter Wagner, June 7, 2004

Many prison town officials are quick to claim prisoners as residents when the Census Bureau comes to town, but prisoners report that this is the only time these officials are so welcoming.

The Census Bureau counts the nation’s mostly urban prisoners as if they were residents of the prison town. When the Census’ only purpose was to count the total population of each state for purposes of apportioning Congress, this procedure might have made sense. Today, when this data is used for state legislative redistricting, the method is an outdated relic that distorts the size of communities within the same state. Last week’s column discussed the theoretical rationale for defining residence based on the place you willingly choose to be and argued that since prisoners are moved to prison against their will, their residence is unchanged. In prior columns, I’ve written that most states have constitutional clauses and statutes that define residence for electoral purposes as to exclude prisons. This column explores how communities with prisons conceive of prisoner residence.

In the cases where the Census Bureau erred and placed the prison in the wrong rural town, the town with the prison frequently complained. But outside of the Census, do local officials consider prisoners to be residents of the town? Are there local services that are available only to residents that prisoners are denied on the basis that the prisoners are not residents?

To find out, I placed classified ads in publications that prisoners read and was flooded with responses. Many prisoners were intrigued, but stumped. This letter was typical:

“Albion State Penitentiary [where I am incarcerated] is so far out in the woods, in the extreme northwest corner of Pennsylvania, it is known as Far B Yon. … I’d be pleased to help … but I have no idea what organizations or types of services to request assistance for.”

By virtue of their incarceration, prisoners are not able to visit the local parks or discuss the affairs of the day in the town square, but my correspondents did identify two local services applicable only to residents but denied to them: the local library and the court system.

Home is where the cell is? Only to the Census Bureau

by Peter Wagner, May 31, 2004

In the words of U.S. Department of Agriculture demographer Calvin Beale: “A rural prison is a classic ‘export’ industry, providing a service for the outside community.” Although rural counties contain only 20% of the national population, they have snapped up 60% of new prison construction. Like export processing zones in Third World countries, even the raw material is imported for final manufacture. In New York, for example, only 24% of prisoners are from the upstate region, but 91% of prisoners are incarcerated there.

The Census Bureau counts the nation’s mostly urban prisoners as if they were residents of the mostly rural towns that host the prisons. This methodology infects the data used for legislative redistricting and results in a dilution of the voting strength of the communities that have large numbers of people in prison. States with large prison populations violate the 14th Amendment’s One Person One Vote principle when they rely on Census Bureau data to draw their legislative districts.

Census’ transfer of incarcerated population creates legislative stalemate in New York

by Peter Wagner, May 24, 2004

The current legislative stalemate in reforming New York’s drug laws might be the result of a Census Bureau quirk that counts prisoners as if they were residents of the prison town. Senate conference co-chairman Dale Volker is a former police officer opposed to many of the reforms proposed by Assembly conference co-chair Jeffrion Aubry of Queens. Aubry used to lead a social service agency that provided drug treatment.

Something else is reducing the clout of advocates for drug law reform: The U.S. Census. Each Senate district in New York City is missing about 1,800 incarcerated residents, with these residents instead credited to rural districts like Senator Dale Volker’s. One out of every 25 adults in Volker’s district is a prisoner barred by law from voting for or against the Senator. By the time these prisoners complete their sentences and are again allowed to vote, they will be back home in a different district.

The six prisons in Volker’s 59th district contain 8,951 prisoners including 2,391 drug offenders. These bodies swell Volker’s influence in violation of the Constitutional guarantee of one-person-one-vote. Prisons are big business in only a few districts, but every district in the state that sends people to prison sees its clout diminished in the legislature as a result of the Census Bureau’s counting method. Senator Volker has the right to advocate against drug law reform if he wishes, but his political clout should be based on the actual number of his rural constituents, and not on how many of New York City’s drug addicts are temporarily in rural prisons.

Source: Michael Cooper, Republicans and Democrats Clash on New York Drug Laws, New York Times, May 21, 2004 and Peter Wagner, Counting urban prisoners as rural residents counts out democracy in New York Senate Prison Policy Initiative, PrisonersoftheCensus.org December 1, 2003.

Three ways to fix Census counting problem

by Peter Wagner, May 17, 2004

I was recently asked if restoring a prisoner’s right to vote would solve the census counting problem. Personally, I think that would be a good idea, but it would not address the principal problem from miscounting the incarcerated: diluting the votes of prisoners’ home communities.

All states that allow or recently allowed prisoners to vote required them to do so back home via absentee ballot. Most states have constitutional clauses or statutes that say that incarceration does not change a residence. (See for example New York, Arizona, Michigan, Vermont and Maine.) If prisoners were to be allowed to vote, it would be back home. Letting prisoners vote is controversial. Where they would vote is not.

The real victims from the way the Census counts prisoners are prisoners’ family and neighbors — people who have not been convicted of anything. Counting the incarcerated not at their homes but in radically different communities dilutes the votes of all the residents of the home communities.

There are 3 potential solutions:

1. The Census Bureau can change its “usual residence rule” to count prisoners at the address they declare or at their last known address. The Census wrote the rules and they can change them. In the past, the Census has changed how numerous groups were counted, including college students, missionaries, and overseas Americans.
2. States can fix the Census data before conducting redistricting. New York fixed some Census Bureau mistakes that placed some prisons in the wrong rural county. Kansas’ constitution requires that out-of-state students and military be deducted and in-state students and military restored to their homes. The Kansas Secretary of State sends out a survey to the colleges and military bases, and then fixes the data before giving it to the Legislature for redistricting.
3. States can do their own censuses. Many states used to do this. Massachusetts was the last to abolish the state census, in about 1990. New York’s Constitution talks about bringing back the state census if the federal census does not contain the necessary data. Counting prisoners in the wrong part of the state sounds like deficient data to me.

The best solution is the first one. The Census should just update the usual residence rule to count the incarcerated at home. The rule might have made sense in 1790 when incarceration was low and redistricting didn’t exist, but it’s a relic now.