Disenfranchised urban prisoners are not rural constituents

by Peter Wagner, November 24, 2003

Counting urban prisoners as rural residents turns the entire idea that districts should be of equal population on its head. In three New York Senate districts, and 10 Assembly districts, at least 2% of the “constituents” are prisoners. The district of upstate Republican Chris Ortloff has the highest percentage of prisoners in the legislature: 6.99%.

The population to be “represented” by Assemblyman Ortloff includes 5,594 Black adults, 82.6% of who are barred by law from ever voting for or against him. By the time these prisoners complete their sentences and are again allowed to vote, they will be back home in a different district.

The prisoners should never have been counted locally for the same reason vacationers are not counted locally: they are only there temporarily.

Importing Constituents: Prisoners and Political Clout in New York

How prison counts change district lines. A graphical explanation using Assemblyman Chris Otloff’s district 114 as the example

Kansas proves adjusting Census is possible

by Peter Wagner, November 17, 2003

The experience in Kansas shows that it is practical to adjust the Census data to reflect state residents at their home, rather than Census, addresses. If the federal Census does not change how it counts special populations, it is not necessary for a state to entirely abandon the federal census. Kansas switched from its own state census to the federal census with one exception: Kansas does a special census of students and military personnel so it can change how they are counted in the data used for redistricting. Expanding this practice to prisoners should be quite simple.

The Kansas Constitution requires that redistricting be based on Census data adjusted to:

• exclude non-resident students and military personnel and
• transfer in-state students and military personnel back to their home addresses elsewhere in Kansas.

States are not required to use the federal census

by Peter Wagner, November 10, 2003

While states must redistrict on the basis of actual population, the U.S. Constitution does not require states to use the federal census for its own redistricting:

“Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.”

States are therefore free to use their own census or to correct how the federal census counts prisoners.

Bethel Park v. Stans, 449 F.2d 575, 583 (3rd Cir. 1971)

Usual residence rule has been modified for other special populations and can be changed for prisoners too

by Peter Wagner, November 3, 2003

The Census cites its “usual residence rule” as requiring it to count prisoners at the prison. That’s true as far as it goes in regards to prisoners, but the Census and Congress have the power to change this rule, doing so for college students in the 1950s and for military personnel and other groups many times since 1900. Currently, college students living at the college are counted at the college, but prior to the 1950 Census, they were counted at their parent’s home. (Boarding school students younger than college age are still counted at home.)

The Census has been even more inconsistent with overseas military:

With the exception of the 1900 census, the Bureau only began to count overseas military personnel in 1970, allocating them to … their “home of record,” namely the state to which they declared they would return at the end of their service. In 1980, … the Bureau ceased allocating overseas federal employees to particular states. However, the federal employees still considered themselves to be “usual residents” of the United States, and for that reason, among others, the Bureau again reversed its policy in 1990 and allocated federal employees living overseas according to their “home of record.”

The counting of overseas missionaries from the Church of Latter-Day Saints (Mormons) and applying them back to their home states has likewise been changed, counting the missionaries from 1910 to 1940 but not before or after.

The usual residence rule is not an inflexible constitutional mandate. It is a rule within the power of Congress and the Census to modify based on new situations and needs. The usual residence rule should be modified once again so that the Census can more accurately count our nation’s large and growing prison population where they truly reside: with their home communities.

Franklin v. Massachusetts 505 U.S. 788 (1992). Second Amended Complaint, Utah v Evans, Utah D.C. paragraph 32.

Prisoner counts skew local gender and marriage statistics

by Peter Wagner, October 27, 2003

There are 86 unmarried men for every 100 unmarried women in the United States. The ratio will vary between neighborhoods, cities, regions and states from a variety of influences on the statistic. Some are the reflections of women’s longevity, different cultural ideas about marriage, and some are the result of social and economic demographics like the concentration of young people.

The disparity between states is somewhat small, ranging from Alabama and Rhode Island at 79 unmarried men to 100 unmarried women, to Alaska at 114 unmarried men per 100 unmarried women. (Alaska is a very small state that has a lot of industries that rely on imported male workers. The next state is Nevada at 103 unmarried men per 100 unmarried women.)

The county disparity is huge, ranging from 53.8 to 362 unmarried men per 100 unmarried women. The Census collects marital status data because it helps communities plan for social services and future growth. While relatively useful for some purposes on the state level, this data is more difficult to use on the county or town level because the Census includes “special populations” of prisoners and soldiers — which tend to be male — in with the local community rather than at their actual homes.

County of conviction and prisoner residence

by Peter Wagner, October 20, 2003

Much of the research on this website uses county-of-conviction as a proxy for a prisoner’s home residence because this data is more frequently available. Although most Departments of Correction gather residence data, they frequently only publish county-of-conviction data.

The general equivalency of the county of conviction and residence datasets can be proven in North Carolina, where the Department of Corrections publishes both sets of information. Analysis shows that the two figures are substantially the same, other than a small number (5%) of prisoners with an out-of-state residence.

Although correcting the Census dataset for redistricting purposes will require the precise address information in the residence files, county-of-conviction data is sufficient to show the necessity of abandoning the Census’s usual residence rule: In most states, prisoners are convicted in a small number of urban counties and incarcerated — where the Census currently counts them — in other counties.

A repugnant flashback?

by Peter Wagner, October 13, 2003

Unfortunately, counting disenfranchised residents for purposes of mis-representation in the legislature is nothing new.

At the founding of the United States, the white population in the South was much smaller than that in the North. In a huge compromise, the original U.S. Constitution allowed the Southern states to count their Black slaves as 3/5ths of a white person. The slaves couldn’t vote, so the slaveowners got to “represent” this captive population in Congress and the Electoral College.

The result? Thanks to its added population, for 32 of the first 36 years of the country, the President was a slave-holder from the otherwise small state of Virginia. Artificially boosting the political power of the South created a national stalemate that prevented the creation of a democratic solution to the slavery problem. What might have been resolved peacefully in the 1790s became the Civil War in the 1860s.

Today, a similar democratic and economic impasse presents itself in the debate over crime control policy. As the economy constricts and state budgets contract, it is absolutely essential that our political structure be responsive to changing needs of the people.

Would a democratically constituted legislature support expensive prisons over proven-effective drug treatment? Counting our population at their true residences and apportioning political power accordingly would be a great way to find out.

Prisoner-staff racial disparity shows need for Census reform

by Peter Wagner, October 6, 2003

It comes as no surprise that prisoners resemble the communities from which they come, and that prison staff resemble the communities that host the prisons. But what may be a surprise is just how different these two groups are.

According to our recent study, more than half of all prisoners are Black, but only 20% of the prison jobs are held by Black staff. Only 64 prisons in the country have been able to hire Black staff in proportion to the number of Black prisoners; and not a single one of these prisons is located outside the South or the urban cities of the North.

Despite a concerted effort by prison administrators to increase staff diversity, prison staff remain overwhelming white because the prisons themselves are increasingly being built in rural areas rather than in the urban and predominantly minority areas from which most prisoners originate.

This racial disparity between prisoners and staff is another way of illustrating that prisoners tend to come from very different communities than the prisons are physically located in. Counting prisoners in their true communities would give us a more accurate picture of the size and needs of all our communities.

See: Peter Wagner and Rose Heyer, AlterNet, September 25, 2003.

Cities with large prisons: Counting prisoners as residents dilutes democracy in Mansfield Ohio

by Peter Wagner, September 29, 2003

Mansfield, Ohio is a small city with 6 city council wards of approximately 8,600 residents each. The problem? Two large prisons (Mansfield Correctional Institution and Richland Correctional Institution) are both in the 5th Ward and their populations were counted as residents of the ward.

The City’s law director advocated for a redistricting plan that would at least split the prisons into two different districts, complaining that “Deanna [Torrence of the 5th Ward] is only representing 3,000 people (who actually can vote).” The City decided to keep the districts as-is.

The best solution for the city would have been to exclude the prisoners from the redistricting process as the majority of the prisoners are from outside Mansfield and its Ward 5. Only 1.26% of Ohio’s prisoners are from Richland County (564 prisoners), with a smaller portion being from Mansfield and an even smaller portion from Ward 5.

It makes no sense to use Census counts of state prisoners to divide up political power within the City of Mansfield. Of course, the best solution would be for the Census to count prisoners at home, not at temporary prisons.

Sources: Linda Martz, Taxpayers before wards, Mansfield News Journal (Mansfield, OH) November 26, 2002, p. 6A; U.S. Census, Ohio Department of Corrections and Rehabilitation.

Prisoners skew local rural redistricting too

by Peter Wagner, September 22, 2003

Counting prisoners as residents of the prison town can skew the balance of political power within a rural community as well. As I wrote in Bogus data pumps up the rural population, the reported population of many rural counties with prisons can be significantly changed by as much as 5 or 10% as a result of counting mostly-urban prisoners at the prison. In counties with a legislative form of government, including the prisoners in the base population can significantly boost the weight of a vote in the prison town while diluting the weight of a vote in other portions of a county.

In Greene County NY, the county legislature proposed to include prisoners in the count. The two prisons in Coxsackie in the northeast corner of the county amounted to 6% of the county’s population. Of course, the prisoners can’t vote and few if any are from Greene County. Including the prisoners would have resulted in the town of Coxsackie getting 48% more representation in the local legislature than it was entitled to.

At the urging of residents elsewhere in the county, the Greene County legislature decided to change from previous practice and exclude the prisoners from the count. This was the correct thing to do. The change did not hurt the ability of the prisoners to get representation in local government (as they were not residents of Greene County in the first place), and it brought the principle of “one person one vote” to the local county legislature.

Unfortunately, this was not the practice everywhere in New York, and the diversity of approaches shows that contrary to assumption, counties are not obligated to slavishly use inappropriate Census data in their redistricting. According to a survey distributed by Saint Lawrence County, 14 counties included prisoners in their redistricting and 9 excluded them. (Ten of the prison counties did not respond.)

See also Exclude prisoners from local redistricting submitted to Daily Freeman, Greene County, New York, February 3, 2003.