Making Prisoners Count


With a prison population in the millions, the current method of counting inmates skews how representative democracy operates.

Add these two facts together: (1) To the United States Census Bureau, where prisoners have their “usual residence” is the prison in which they’re incarcerated and (2) The findings of the decennial census are used to draw political boundaries. The sum of those parts does strange things to the notion of how Americans elect people to represent us in state and local governments. “Our system for making political decisions in this country,” says Peter Wagner of the Prison Policy Initiative, “is being distorted by the miscounting of two million people.” In an era obsessed with political data—Microtargeting! Swing-state polling!!—and in a country where we incarcerate people at a higher rate than anywhere else in the world, thinking through the political counting of prisoners calls for the same enthusiasm, because the way we do it now corrupts the very equations upon which representative democracy is built.   

What’s the big deal? To start, there’s the question of what it means to truly be represented by an elected official. Right now, prisoners are counted in districts where they’ll likely never live as free citizens. Also likely is that their interests and concerns remain back home. Given that in all but two states incarcerated felons can’t vote (in Maine and Vermont, they vote absentee), it’s logical that the incentive is for prison-district politicians to advocate against the interests of their supposed constituents. Longer sentences, more facilities, and higher inmate phone rates make the business of prisons more profitable, which, in turn, benefits politicians who have one in their district. In a recent law-review article, Breaking the Census: Redistricting in an Era of Mass Incarceration, Wagner cites now-former New York state Senator Dale Volker, a Republican known for his boosterism of the state’s stringent Rockefeller drug laws, quipping that it’s a good thing Attica’s prisoners can’t vote, because “they would never vote for me.”

It gets even wonkier when you drill down into the concept of political power. Putting aside the U.S. Senate (a topic for another day), equipopulous districts in the United States are meant to protect the principle of “one person, one vote.” In a landmark 1964 case, voters in one Alabama county sued over the fact that, in a state that had experienced enormous population growth in its cities, there remained legacy rural state House districts that had one-sixteenth the eligible voters of others in the state. (The 1800s British had a delightful term for districts that hung on to members in the pre-reformed House of Commons despite sometimes having only a handful of households remaining: “rotten boroughs.”) The Supreme Court found that under the 14th Amendment’s equal-protection clause, districts must reflect where people actually live; Chief Justice Earl Warren wrote for the majority that “legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” But if you live near a prison, your vote can be worth more than your neighbor’s. Here’s how. District A contains ten people, all free. District B contains ten people: nine in prison, and Joe. Joe, by his lonesome, has the same ability to elect a local representative as all ten residents of District B do put together. Prison geography has made Joe a superpowered citizen.

Then there’s the impact back home. Incarceration rates are much higher in some neighborhoods than in others; the term “million-dollar block” has been coined to talk about a census block, like several in Brownsville, Brooklyn, where cities and states spent that much each year to incarcerate its residents. Consider that a wife whose husband is serving a three-year sentence somewhere counts as a household of one. When taken in the aggregate, a section of town that might have, say, gotten two seats in the city council gets one. It’s the flip side of superpowered Joe: neighborhoods sapped of their political strength because some portion of the population is locked up elsewhere. New York state, which recently passed a law requiring prisoners be counted back home for redistricting purposes, saw a (virtual) flow of 38,000 prisoners away from upstate, where prisons are big business, and the crediting of some 24,000 to communities downstate, including New York City. "Because we have so much racial disproportionality in the criminal-justice system," says Dale Ho, assistant counsel with the NAACP Legal Defense Fund, "when you count people in their place of incarceration, you weaken the political voices of home communities that tend to be communities of color."

If the debate over where to count prisoners seems like a minor quibble, maybe it was, once. Before 1990, census surveys didn’t explicitly tell census-takers to exclude from their household counts those who were away at prison. The surveys have since, though, and meanwhile, the U.S. prison population has grown from 200,000 in 1970 to ten times that today. The enumeration of prisoners in prisons is a practice that has been hardened in the last two decades, and its results have multiplied to a level that now matters.

U.S. census data are good enough for apportioning seats in the U.S. House of Representatives among states: Tennessee gets nine, Kentucky gets six, that sort of thing. But it becomes more complicated when you start using federal census data for political districting at a more local level. We should be wary of local governments running wild with the data they use to carve their political districts. But, as in the Supreme Court’s 1964 Alabama case showed, the urbanization of the U.S. in the late 19th and 20th centuries required a reconsideration of how political districts are drawn. That we’re an increasingly incarcerated country seems to require the same.

That’s not to say that a data correction here is easy. For one thing, it will take a shift in thinking about how to categorize prisons. For instance, the census lumps prisoners and students together in one bucket, counting both at their institutions. But there’s plenty that should differentiate them, of course. Students partake in the local community, something generally frowned upon for prisoners. In the same vein, prisoners constantly churn through facilities; prisons might look like static monoliths, but they function more like a hotel than one big house. For another thing, a data correction means figuring out how to extract better information from prison administrators who, traditionally, have had little operational interest in where their wards come from. Finally, it means figuring out both what counts as “home” for a prisoner and what to do if it’s impossible to nail one down. Republican senators opposed to a plan in New York state to redistrict prisoners back to their (presumably Democratic) hometowns blasted the proposal as “the fictitious movement of a phantom population” into places that might well now be occupied by others. The NAACP has, for its part, resolved that it’s more in keeping with “one person, one vote” not to assign prisoners to any district than it is to use them to pad out prison districts, but where to count prisoners remains a politically sensitive issue. 

The end game for reformers like the Prison Policy Initiative’s Wagner is to push the U.S. Census Bureau to begin collecting high-quality prisoner home data as part of its normal practice. In a call earlier this year, a bureau spokesperson told me that the view of the agency is that enumerating prisoners back at home would require an act of Congress. For now, then, the focus is on the states. New York has begun using Department of Corrections data to draw its boundaries, and Maryland’s similarly intentioned No Representation Without Population Act survived a Supreme Court challenge this summer. It’s a back-door strategy. Refusing to use census results might convince the politically precarious Census Bureau that, by counting the country’s prisoners as residents of their prisons, their taxpayer-funded data is becoming increasingly worthless.

How the U.S. counts its prisoners might be a historical data quirk, but with the U.S. prison population now counted by the millions, it’s a quirk that skews how representative democracy operates. And the first step in working with data is figuring out whether you’re counting the wrong things.

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