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Proposed Census Rule Could Hurt Communities

The Census Bureau’s proposal to count people in prison at the site of their incarceration rather than their previous communities will continue to lead to a large-scale voting power imbalance.

July 13, 2016

Last week, the U.S. Census Bureau issued a proposed rule for the 2020 Census that would continue count­ing incar­cer­ated persons at the site of their prison rather than at their pre-incar­cer­a­tion homes.

The proposed rule is unfor­tu­nate.  The current prac­tice ignores the fact that the vast major­ity of pris­on­ers return to their pre-incar­cer­a­tion communit­ies after their release, and have little or no connec­tion to the communit­ies they are incar­cer­ated in. In New York, for example, 91 percent of pris­on­ers are housed at facil­it­ies located in Upstate New York, even though 66 percent come from and ulti­mately return to New York City.  Count­ing inmates at the site of their pris­ons distorts the alloc­a­tion of legis­lat­ive seats and also leads to a large-scale voting power imbal­ance in communit­ies with pris­ons — mean­ing the citizens in those districts have greater repres­ent­a­tion and more polit­ical power at the expense of the large non-voting popu­la­tion of pris­on­ers in their district.

Instead of continu­ing the current prac­tice, the Census Bureau could have proposed a rule that would use state and federal Depart­ment of Correc­tions inform­a­tion to count incar­cer­ated indi­vidu­als in the communit­ies they lived in previ­ously. This step would have given proper repres­ent­a­tion to communit­ies with large prison popu­la­tions and ended the distor­tions caused by prison gerry­man­der­ing. From a policy perspect­ive, this rule would have been in line with other proposed changes the Census announced, includ­ing count­ing juven­iles in resid­en­tial treat­ment facil­it­ies as well as deployed milit­ary person­nel in their pre-stay or pre-deploy­ment homes. In both cases, the Bureau acknow­ledges the fact that count­ing either popu­la­tion where they are on census day would lead to inac­curacies, as these situ­ations are tempor­ary, with people return­ing to their home communit­ies after­wards. This same rationale holds true for incar­cer­ated indi­vidu­als — who by and large are not perman­ently incar­cer­ated — and it is diffi­cult to see why a differ­ent prin­ciple should apply to pris­on­ers. The change would also have been in line with the current prac­tice in most states.

In declin­ing to change its exist­ing prac­tice, the Bureau rejec­ted the urging of 156 groups and indi­vidu­als, includ­ing the Bren­nan Center, who told the Bureau that the current rule had signi­fic­ant distort­ive effects. By contrast, only six inter­ested groups advoc­ated the contin­ued count­ing of incar­cer­ated persons at their prison addresses. Inter­ested parties now have 30 days to provide  comments on the proposed rule.

One bright spot in the proposed rule was the Bureau’s announce­ment that it would continue to provide data that will allow states to volun­tar­ily real­loc­ate their prison popu­la­tion to their homes. Several states have passed laws ending prison gerry­man­der­ing by real­loc­at­ing incar­cer­ated indi­vidu­als from where they are on Census day to their pre-incar­cer­a­tion homes. Both New York and Mary­land, for example, have imple­men­ted laws ending the misal­loc­a­tion of incar­cer­ated indi­vidu­als for draw­ing districts, and Delaware and Cali­for­nia will end prison gerry­man­der­ing start­ing after the 2020 Census.  Others have followed suit.  However, such volun­tary steps are not possible every­where because some state consti­tu­tions require the use of Census counts for redis­trict­ing, mean­ing that in some states even if the legis­lature wanted to reap­por­tion the prison popu­la­tion to their homes it would be preven­ted by the Bureau’s refusal to change the resid­ency rule.

The proposed rule is not yet final. The Census Bureau should recon­sider its decision to continue its current prac­tice and review and adopt a rule count­ing incar­cer­ated persons as being resid­ents of their pre-incar­cer­a­tion communit­ies.  Doing so would make a more accur­ate Census as well as help ensure that the nation’s communit­ies are fairly repres­en­ted in the upcom­ing round of redis­trict­ing that will take place after the 2020 Census.