Prison Gerrymandering Undermines Our Democracy

The U.S. Census Bureau recently released 2020 redistricting population data, setting off the redrawing of congressional, state, and local electoral maps around the country. When reporting this data, the Census Bureau generally locates people where it deems them to “live and sleep most of the time.”¹ For people in prison, this means the site of their incarceration rather than their home communities, even though in most cases they have no meaningful connection to that area. ² The policy wrongly suggests that people in prison are “at home” where they are incarcerated, ignoring that most stays in prison are far shorter than the decade for which the maps will be in effect ³ and that many states consider incarcerated people legally resident in their home communities for purposes other than redistricting. ⁴ 

While some states reallocate incarcerated individuals to their home communities when making maps, most do not. When states draw districts without reallocating people who are incarcerated, they ignore the reality of the relationship between these individuals and the areas where prisons are located. Lawmakers who represent those areas often do not feel the same responsibility toward people in prison that they do for their other constituents and generally do not inquire about their welfare or represent their interests. ⁵ Incarcerated individuals have much more meaningful connections to their home communities and the lawmakers who represent those areas, some of whom even perform constituent services on their behalf. ⁶ But those areas see their representation in legislative bodies diluted, while areas with prisons receive more than their fair share. This practice is known as prison gerrymandering, and it turns inequities in our criminal justice system into representational inequities.

Prison gerrymandering undermines our democracy in several key ways:

1. It presents a distorted snapshot of the general population and misrepresents incarcerated peoples’ relationship to their representatives. Incarcerated individuals generally have few connections to the areas housing prison facilities, which are often far from their home communities and demographically very different from them. ⁷ Most people in prison at the time the census is taken will be released within three years, and exceedingly few remain near the prison upon release, yet they will be counted toward that region’s representation for the full decade that the maps are in effect. ⁸ Evidence from legislators and legislative staffers suggests that the lawmakers who represent these districts do not always consider incarcerated people to be “real constituents” and are often indifferent to their interests. ⁹ When incarcerated individuals do receive constituent services, they are often provided by representatives from their home communities, as legislators from Philadelphia and Houston have attested. ¹⁰
    
2. Black and Latino communities are deprived of representation. These communities of color are incarcerated at disproportionate rates nationwide. In 2019, 56 percent of the United States’ prison population was Black or Latino, despite these groups making up only 32 percent of the overall population. ¹¹ Prison gerrymandering turns disparities in incarceration into disparities in representation; electoral maps do not reflect the true size of the largely Black and Latino urban communities. ¹² For example, according to the Texas Civil Rights Project, Harris County (containing the city of Houston) and Dallas County would likely have received an additional state house seat each if incarcerated people were counted at their homes. ¹³ While these inequities have long existed, they have become magnified with the rise of mass incarceration starting in the 1970s. ¹⁴
    
3. The largely rural, white communities where prisons are located receive a representation windfall. In most states, prison facilities are located in rural areas with predominantly white populations. ¹⁵ Because the law requires districts to be roughly equal in population size, without the incarcerated population many of these districts would have fewer people than legally required and would have to be expanded. ¹⁶ By counting incarcerated individuals at prisons, states artificially inflate these areas’ populations, and thereby their political clout. The Prison Policy Initiative reported that in Texas, for example, every 88 people in two districts with prisons received as much representation as every 100 people elsewhere in the state. ¹⁷ Prison gerrymandering not only skews representation away from the urban communities from which incarcerated individuals overwhelmingly come but also from rural communities that do not host prison facilities. ¹⁸
    
4. Prison gerrymandering compounds other forms of discrimination. The systemic underrepresentation of Black and Latino communities in Congress and state legislatures gives them less of a say in how resources are allocated. In this way, prison gerrymandering exacerbates harms caused by other forms of gerrymandering and abuses like vote suppression, which also tend to target Black and Latino people and other communities of color. ¹⁹

Thankfully, public support for ending prison gerrymandering is burgeoning. In 2016, the Census Bureau considered a change to its residence rule that would have counted incarcerated persons in their home communities. Although the bureau chose ultimately not to change the rule for the 2020 Census, it received an overwhelming 77,863 comments supporting the change. ²⁰ And a growing number of bills have been introduced in Congress that would mandate a change to how incarcerated people are counted.

Even if there is no change at the federal level, there is much work that can be done by the states. The Census Bureau offered a new data product this year that will help states allocate incarcerated individuals to their home communities for this redistricting cycle. ²¹ To date, 11 states have permanently changed their policies on where people who are incarcerated will be counted for purposes of redistricting. ²² Additionally, Pennsylvania’s redistricting commission recently voted to do so for the current cycle. ²³

This map provides imprisonment rates for each state, in the majority of which prison gerrymandering remains the norm. The following table highlights the twelve states that have passed reform, breaking down the status of the reform in each state and providing basic demographic data of the prison population.²⁴