New York State Senators File Lawsuit to Bring Back Prison-based Gerrymandering

Our friends at the Prison Policy Initiative worked tirelessly last year for a legislative end to prison-based gerrymandering in New York State. To put the problem in perspective, upstate New York has seven State Senate districts that would not meet minimum population requirements without claiming incarcerated people as residents. The good news is the legislation passed, but now a group of (surprise!) upstate state senators has filed suit seeking to block implementation.

Lead plaintiff, State Senator Betty Little, has 13 prisons in her district, housing over 10,000 prisoners, so no wonder she’s nervous at the prospect of redistricting without that artificial boost to her numbers. But as Peter Wagner of the Prison Policy Initiative points out, inflating State Senator Little’s district only dilutes the votes of everyone else in New York State:

“Senator Betty Little filed suit this week to revive a legal fiction, claiming that individuals imprisoned in her district are members of the local community and should be counted there when it comes to drawing state and local legislative districts. Senator Little’s attempt to inflate the population of her district with more than 10,000 incarcerated, non-voting residents from other parts of the state will dilute the votes cast in all other districts.”

Ramon Velasquez puts the issue in personal perspective at the Huffington Post:

What if I told you your vote counts more depending on where you live in New York? Should a resident of Wyoming or Cayuga County gets more say in who is elected than a resident of Brooklyn or the Bronx?

At 51, I voted for the first time in my life last fall after I was discharged from parole. Now that I’ve done my time, I expect my vote, or my neighbor’s, to count the same as any other vote cast in this state. A person living in a town with a prison, however, has more voting power than me or most other New Yorkers because of a practice called “prison-based gerrymandering.”

Of course, prison-based gerrymandering does dilute the vote of residents of Brooklyn and the Bronx, but it also dilutes the vote of Manhattan and Staten Island and Long Island, of parts of upstate New York that aren’t near a prison — basically, it dilutes the vote of anyone who doesn’t live in a district with a prison. The Prison Policy Initiative also has a round-up of news coverage and a copy of the senators’ complaint (PDF).

 

How Prison-based Gerrymandering Dilutes Native American Political Power

While Prison Law Blog was enjoying last week’s Thanksgiving break, I noticed several reports from our friends at the Prison Policy Initiative on how prison-based gerrymandering can dilute Native American political power in states where natives are disproportionately incarcerated. That’s basically every state with a significant native population: here are charts showing how Native Americans are overrepresented in Hawaii, Alaska, South Dakota, Nebraska, Minnesota, Colorado, Idaho, Vermont, Iowa, and Michigan, to name a few. Hawaii not only disproportionately incarcerates native Hawaiians but also ships most of its inmates to private prisons on the mainland, further skewing its Census results. But let’s look more closely at Montana. From a 2004 Prison Policy Initiative report:

How the incarcerated are counted in Montana is of critical importance to an accurate count of Native American communities. While Native Americans are 6% of the Montana population, more than 20% the incarcerated people in the state are Native American. Native American women are the same 6% of Montana women, but are 32% of the incarcerated women in the state. Native Americans in Montana are incarcerated at a rate more than 4 times higher than the White residents of the state.

Many critics of prison-based gerrymandering focus (rightly) on the practice’s effects on African-American communities, but it’s worth noting that prison-based gerrymandering (especially when combined with felon voting bans, although that’s a separate issue) dilutes the political power of any group that is disproportionately incarcerated. For that matter, prison-based gerrymandering also dilutes the political power of anyone who doesn’t live near a prison. As always, the Prisoners of the Census blog offers a wealth of resources on this topic.

New York Passes Legislation to End Prison-based Gerrymandering

Yesterday, the New York State Senate passed a bill to count prisoners in their home communities during next year’s legislative redistricting process — rather than counting prisoners where they are incarcerated, which inflates the districts in which prisons are located at the expense of other districts. The bill had already passed in the State Assembly and now goes to Gov. David Paterson for his signature. New York is the third state to pass legislation this year addressing prison-based gerrymandering, after Maryland and Delaware.

From the Prisoners of the Census blog:

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

Seven of the current New York State Senate districts meet minimum population requirements only by claiming incarcerated people as residents.

Forty percent of an Oneida County legislative district is incarcerated, and 50 percent of a Rome City Council ward is incarcerated, giving the people who live next to the prisons more influence than people in other districts or wards.

Delaware Becomes Second State to Address Prison-based Gerrymandering

Delaware’s Senate and House have passed legislation that would count prisoners at home for redistricting purposes. Now, the signature of Governor Jack Markell is the only remaining step to turn Delaware’s HB384 into law. Delaware will become, after Maryland, the second state in the nation to address the democracy-distorting practice of using prison populations to artificially inflate electoral districts. The Delaware law only applies to redistricting, and will not affect state or federal funding allocations.

From the Prisoners of the Census blog:

“Delaware’s legislation recognizes that prison-based gerrymandering is a problem of fairness in redistricting. All districts — some far more than others — send people to prison, but only some districts have large prisons. Counting incarcerated people as residents of the prison distorts the principle of one person, one vote, and we applaud the Delaware General Assembly for enacting this common-sense solution,” said Peter Wagner, Executive Director of the Prison Policy Initiative.

The problem is national as well. One state assembly district in New York includes 7% prisoners; a state house district in Texas includes 12% prisoners; and 15% of one Montana state house district consists of prisoners imported from other parts of the state. Prison-based gerrymandering was not a serious problem when the prison population was tiny, but the 2010 Census will find five times as many people in prison as it did just three decades ago.

States that Don’t Fix Prison-based Gerrymandering May Face Lawsuits

If you want political power, you should move to City Council Ward 2 in Anamosa, Iowa. There, you’ll only have to share your City Council representative with 57 other constituents! In any of Anamosa’s other three wards, you’d have to share your representative with about 1,370 other constituents. How is this possible? Through the magic of prison-based gerrymandering. Anamosa’s Ward 2 contains a state penitentiary home to about 1,320 inmates, who get factored into the population count for the purpose of City Council districting even though they can’t vote, and are unlikely even to be from Anamosa.

That’s an extreme instance of prison-based gerrymandering, but it’s not as extreme as you might think. The NAACP Legal Defense Fund has produced an informative publication, Captive Constituents (PDF download), that outlines the democracy-distorting effects of counting prisoners where they’re incarcerated when drawing state and local election districts. As the example of Anamosa demonstrates, prison-based gerrymandering is not primarily an urban-rural or racial issue. It dilutes the votes of everyone who doesn’t live in a district with a prison — like the rural Iowans who live in Anamosa City Council Wards 1, 3, and 4.

That said, prison-based gerrymandering undeniably has unique effects on urban minority communities.

Upcoming Event: Prison-related Panels at ACS 2010

This weekend, the American Constitution Society will hold its national convention in Washington, D.C. Almost all the panels could bear on prison/jail issues in some way, and certainly on broader concerns of criminal law, procedure, and punishment. That said, if you’re planning to attend and are especially interested in prison/jail issues, watch out for these panels:

Friday, June 18

• 2010 Census and Redistricting — perhaps the discussion will touch on prison-based gerrymandering?
• Access to Federal Courts after Iqbal and Twombly
• Immigration Reform: Congress and the States

Saturday, June 19

• Detainees and Justice: Military Commissions vs. Trials within the Federal Court System
• The Federal Role in Improving Indigent Criminal Defense

Legislative Districting: Maryland Will Be First State in the Nation to Count Prisoners at Home

Kudos to the Maryland legislature for showing national leadership on this important issue! From the Prison Policy Initiative:

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…

Prison-based Gerrymandering Distorts Democracy — and Luckily, Can Be Fixed without Distorting Federal Funding

Readers of this blog will be familiar by now with the term “prison-based gerrymandering”: the process by which counting prisoners where they’re incarcerated at Census time, rather than where they’re from, distorts legislative districts at both the local and state levels. This inflates the political power of the (typically rural) districts that happen to house prisons, at the expense of the urban districts where most prisoners come from, as well as all the rural districts that don’t have prisons. In many states, there are entire legislative districts that wouldn’t exist without counting prisoners. But prisoners, of course, can’t vote and aren’t generally treated as constituents for any other purpose.

Several states have legislation pending this year to end prison-based gerrymandering, and for the first time the 2010 Census will release data in a way that allows states to subtract prisoners from districts if they so choose. However, some local politicians are resistant to these reforms, because of a false belief that removing prisoners from local population counts would also cause their areas to lose federal funding. The media may have fueled this resistance; Aleks Kajstura of the Prison Policy Initiative notes, “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.”

This is simply not true. In a recent post at the Prisoners of the Census blog, Aleks explains why:

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. … 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.

Rather than funding, then, the primary harm of prison-based gerrymandering is the way it distorts the democratic process at the state and local levels. Luckily, this is a problem that can easily be fixed, without reducing — or even, in most cases, affecting at all — the distribution of federal funds. You can read more about the problem at the Prisoners of the Census website. And, if you see a misleading article in your local media claiming that large amounts of federal funds are at stake when it comes to counting prisoners, perhaps you can write a letter to the editor correcting this misunderstanding of the issue.

Second Grader Tests Limits of Rhode Island’s Prison-based Gerrymandering Policy

A second grade girl is putting Rhode Island’s prison-based gerrymandering policy to the test. As reported by this local TV news story, the child has requested that she be allowed to stay on with her classmates at her elementary school in Cranston, where her father is incarcerated, rather than transferring to an elementary school in Providence, where she recently moved with her mother. Advocates for the 9-year-old girl argue that since Cranston considers inmates to be residents at Census time, the city should be prepared to afford them access to services for residents — such as access to the public schools for their children. It’s funny to watch Cranston’s flustered mayor, Allan Fung, towards the end of the local news story: “This individual is not a taxpayer to the city of Cranston! He’s in a situation where he’s incarcerated!” The story also interviews an organizer with Direct Action for Rights and Equality, a Rhode Island organization that advocates for low-income communities of color.

This is a revealing test case, but it’s also a test case that could really only happen in Rhode Island. Cranston is a few minutes’ drive from Providence. In most states, of course, the incarcerated father would more likely be in a prison hours away from his daughter. But in states across the country, local politicians prefer to count prisoners as residents of their districts so they can attract population-based funding and boost their numbers for legislative redistricting, even though prisoners usually can’t vote, aren’t taxpayers, and aren’t considered local residents for just about any other purpose. For instance, prisoners who attempt to petition the local courts for a divorce are frequently rejected and instructed instead to file in their home county. Another revealing inconsistency is that prisoners incarcerated out-of-state generally aren’t considered residents of the state where they are incarcerated by the federal courts when determining personal jurisdiction. In short, nowhere in our governmental structure are prisoners really considered “residents” of the locality where their prison is located, except when it comes time for redistricting. This year legislation has been proposed in several states — including Rhode Island — to end this practice; you can track the issue at the Prisoners of the Census blog.

Quick Roundup on Census 2010 and Prison-based Gerrymandering

I’m traveling this week, but right before I left for my trip, I made sure to fill out and return my 2010 Census form. This was my first “adult” census since I was still a “minor” in 2000 and 1990, so it was kind of exciting to feel like I was being counted (although, also somewhat anticlimactic since the form turns out to be so short!). Of course, I couldn’t help but notice the line on the Census form instructing me not to include in my household count any family members or friends who are currently in prison, since prisoners are counted in the location where they’re incarcerated. I’ve posted frequently in recent months about the issue of “prison-based gerrymandering” — the way that communities where prisons are located benefit from the prison population when it’s time for legislative redistricting, even though prisoners generally can’t vote and aren’t considered members of the community for any other purpose.

This practice hurts not just the urban communities that prisoners usually come from, but rural communities too — actually, it hurts every community that doesn’t have a prison. The good news is that, although it’s not a full solution, this year the Census Bureau will release population data in a way that allows states to disaggregate prisoners from population numbers when it is time for redistricting, and as a result, several states are considering legislation to do just that. The best place to go for news and updates on this very important topic is Peter Wagner’s Prisoners of the Census website, a project of the Prison Policy Initiative. It’s largely thanks to the advocacy of this vital organization that “prison-based gerrymandering” has entered the lexicon and steps are being taken around the country to remedy this unjust practice. A full digest of my posts on this topic can be found at https://prisonlaw.wordpress.com/tag/census-2010/