Justice sign on a Courtroom Building.

How does Prison-Based Gerrymandering help legislators and hurt communities inmates are from and will probably return to? You might ask why does it matter how persons who can’t vote are counted by the Census Bureau? You may wonder how the prison population effects local and state politics? Another good question is, how do inmates in local and county jails that have not been charged and/or convicted play a role in prison-based gerrymandering? These are the questions I had when learning about prison-based gerrymandering that I hope to answer for readers.

At first glance what stands out is that the census is taken every 10 years. This matters because not every person convicted of a crime is sentenced to a 10 year term. In fact, according to the U.S. Department of Justice, in 2016, from ones initial admission date to release date a prisoners “average time served” was 2.6 years. Of the state prisoners convicted of violent crimes in 2016 the average time served was 4.7 years. For the sake of this article and to paint a picture I will round that up to 5 years. When considering the length of time between the initial arrest, court proceedings, and admission date to a prison many of the offenders released in 2016 may have been held in local or county jails, and even prisons when the previous census was taken on April 1, 2010. Especially those that could not make bail after their arrest. One must consider that not every person is arrested in the city, county, or state where they maintain residence. For detainees that were arrested outside of their residence, if detained on the day the census is taken they are counted as a resident of the location in which they were detained. No matter if they are detained for one day or one week. Upon release, if those detained return to their original place of residence they are still deemed a resident of the location they were held until the next time the census is taken, provided they aren’t detained again. This includes persons that are sentenced to serve their time in psychiatric evaluation or treatment facilities. In 2017 that number accounted for 9,000 inmates. If convicted of a felony none of these inmates are able to vote nor can they physically contribute to the locations they are counted as residents. Yet they play a part in prison-based gerrymandering.

On February 7, 2018 the U.S. Census Bureau announced how the term “residence” would be defined for the 2020 Census. In that notification the bureau informed the American people that it would continue to count incarcerated persons as residents of the prison locations they’re incarcerated instead of their home communities. Many will remember the battle between the Trump Administration and progressives over adding the citizenship question to the Census. With so much attention on immigrants over the last decade it is no surprise that hardly anyone questioned how American inmates are counted. With that in mind, the next question should be, what are the advantages and disadvantages of counting inmates as residents of the prison location they are incarcerated instead of their home communities?

According to Peter Wagner, Executive Director of the Prison Policy Initiative, “The Census Bureau blatantly ignored the overwhelming consensus urging a change in the Census count for incarcerated persons”. On May 20, 2015 the Bureau of the Census Department of Commerce released a call to action for the “Notice and Request for Comment” on the 2010 Census Residence Rule and Residents Situations. The notice states “The Residents Rule is applied to living situations to determine where people should be counted during the decennial Census. Specific Residence Situations have been included withe the Residence Rule to illustrate how the Rule is applied. The Census Bureau is currently reviewing the 2010 Residence Rule and Residence Situations to determine if changes should be made to the Rule and/or if the situations should be updated for the 2020 Census.”According to Mr. Wagner, of the 77,863 comments over 99% expressed that inmates should be counted at their home address and not at the prison location they’re incarcerated. This includes persons that are sentenced to serve their time in psychiatric evaluation or treatment facilities. In 2017 that number accounted for 9,000 inmates. None of those inmates are able to vote nor can they contribute to the location in which they are counted. Yet they play a part in gerrymandering.

The same practice is used to count pretrial detainees. Pretrial detainees are those detainees that have not yet been convicted or sentenced. To give you an idea of how many pretrial detainees there are during any given year, according to PrisonPolicy.org in 2019 there are over 540,000 people held in pretrial detention. America has the largest pretrial detention population in the world. Some of the inmates have not even been charged with a crime. In our legal system a person can be held in custody for 24 to 72 hours without being charged. After that time frame if not charged with a crime the detainee is to be released. Often times for various reasons inmates are not released and may spend months in jail. Should these inmates be incarcerated on the day the Census is taken they are still counted as a resident of the location of the jail they are being held. Vacationers are not exempt. It is important to note that pretrial detainees and inmates charged with misdemeanors are allowed to vote through absentee ballots using their home address. This creates a problem when municipalities rely on inaccurate Census data. Even though pretrial detainees who vote do so in accordance with their home address they are still counted as constituents of the jurisdiction in which they are incarcerated. Even if their incarceration is only on the day the Census is taken.

When counting residents the Bureau rely’s on what is known as the “Concept of Usual Residence”. Which is the state in which a person resides and the specific location within that state. However, the Census Bureau defines it simply as “the place where a person lives and sleeps most of the time”. Usual Residence comes to us from the first Census by way of The Act of March 1, 1790.

As with any issue involving politics prison based gerrymandering has proponents and opponents. Proponents will argue that it does not negatively affect an inmates usual residence, and will also argue that it helps the municipalities where the prisons are located. Makes no sense, right? Opponents will argue that it’s all about the money and power. Census data are used to proportionally allocate federal funds. For example, to properly apportion the $675 billion for 132 federal programs in fiscal year 2015, Census data were used. The top five programs that census data are used for include Medicaid, Medicare Part B, SNAP, Highway Planning and Construction, and the Federal Pell Grant program. Since the Census is taken every 10 years the distribution of federal funds is based on annual population estimates. Which are calculated using birth, death, and immigration data. To match federal funds with the state spending Census data are used. Some of the federal programs included are Temporary Assistance for Needy Families (TANF), the Children’s Health Insurance Program (CHIP), and Medicaid. The calculated rate is known as the Federal Medical Assistance Percentage and is dependent on a states per-capita income relative to the national average. When population estimates are calculated lower than what they are federal funding does not match state spending. States ultimately do not receive the federal funds needed to match their true populations. As you can imagine this puts a strain on resources. Poor communities where most prisoners reside suffer the most and continue falling behind. As usual the trappings of artificial population counts manifest in the worst possible programs like the U.S. Department of Education’s Title 1, and the Individuals with Disabilities Act for special education students. Funding for these students, most of which reside in poor communities rely on accurate Census population estimates.

Infrastructure was once a hot topic but, as the nations attention was drawn to immigration, investigations, and now impeachment infrastructure was lost in the shuffle. Even though Republicans and Democrats can’t come to an agreement to fix the nations crumbling infrastructure it does not stop crumbling and the request for federal funds persists. Distribution of funds for the National Highway System also rely on the annual Census population count. If you’ve ever driven the roads of a poor urban community and a rural community where many prisons are located you surely know the difference in road quality.

We are all aware of the problems in our penal system that create the push for prison reform. What is not known is the role prison-based gerrymandering plays in the way legislators from districts with prisons located in them may vote on crime legislation. Districts with prisons in them have artificially inflated populations which gives those districts a bigger voice in state legislatures. Imagine legislators with a prison in their region and 2/3 of their population is made up of inmates. That region would have more districts and representatives than those around them.  For a district to be represented in the state legislature population requirements must be met. Naturally, prison districts benefit from artificially inflated populations by giving their districts a political voice. Whereas districts where prisoners are actually from may not have representation or the same political power.

There is a lot more to be said about prison-based gerrymandering and how it is unfair to voters, communities that are underrepresented, and our electoral process in general. We live in a system where all citizens, regardless of where they reside in a state, are entitled to equal legislative representation. That is our system of “One Person, One Vote”. Prison-based gerrymandering does not honor that system. In fact it victimizes that system in the most vile of ways. This subject, as with many I write about, is not a partisan issue. This is an issue that effects all citizens of the United States. It is how some districts are favored over others. It is how laws are made that go against the majority of a population. Whichever party you feel you represent, prison-based gerrymandering is an issue that We the People must use our voices against, because it is a system truly set against We the People. Use your voice.

James Cheef