How Should We Count the Inmates?
The Maryland, Delaware, and New York legislatures recently approved laws that, for redistricting purposes, will count inmates at their most recent permanent home addresses before they were incarcerated, rather than at the institution where they are housed. Maryland’s law, the first to be enacted,will assign inmates to theirprevious addresses for both U.S. congressional and state legislative redistricting. The Delaware and New York laws will apply only to state legislative redistricting. Counting inmates at their addresses prior to incarceration differs from the U.S. Census Bureau’s practice of counting inmates as residents of the communities where they are incarcerated.
While Texas and most other states use the Census Bureau’s approach for redistricting, counting inmates where they are incarcerated, Connecticut, Florida, Illinois, Minnesota, Oregon, Rhode Island, and Wisconsin recently have considered or are considering measures similar to the ones adopted by Maryland, Delaware, and New York. During the 2009 regular session of the 81st Texas Legislature, the House Corrections Committee heard testimony on, but did not report, HB 2855 by Dutton and HB 672 by Hodge, both of which would have required Texas to count inmates at their addresses before incarceration. During the 2001 regular session, the House Elections Committee favorably reported a similar bill, HB 2639 by Dutton, which the House rejected by 48-91-3. In addition, U.S. Rep. Gene Green, D-Houston, has filed a bill in Congress (H.R. 2075) that would require the Census Bureau to count inmates at their previous addresses for the 2020 Census.
Supporters of the new law argue that counting inmates where they are incarcerated artificially inflates the populations of rural areas where most prisons are located at the expenseof urban areas where most inmates come from and eventually return. Opponents say that counting inmates at their address before incarceration ignores the impact that prison populations have on the districts where they are incarcerated and that it would be administratively burdensome.
Three Ways to Count Inmates
Three common approaches for counting inmates for redistricting purposes include counting inmates where they are incarcerated, not counting them at all when establishing district base populations for redistricting purposes, or counting inmates at their residence before they were incarcerated.
Counting inmates where incarcerated
Counting inmates where they are incarcerated is the method used by almost all states and local governments. It is the method used for the federal decennial census, and in Texas, for the redistricting of congressional, legislative, and state board of education districts and for most local redistricting, such as dividing Texas counties into commissioner and justice of the peace precincts.
The U.S. Census Bureau has counted inmates where they are incarcerated since 1850. This is consistent with the bureau’s general practice of counting individuals where they reside, which the Census Bureau defines as “where they live and sleep most of the time.” The Bureau’s goal is to count all the people in the country and tie them to a specific geographic location. Other groups the Census Bureau counts where they reside, rather than at their previous addresses, include college students in dormitories, senior citizens in retirement homes, and stateside military personnel in barracks.
Another approach to counting inmates is to exclude them from population counts for the limited purpose of redistricting and representation. Sometimes certain population segments are excluded in the belief that they are too transitory or simply do not participate fully in the life of the community.
A few states exclude military personnel housed on bases or college students in dormitories for redistricting. Hawaii excludes military personnel, and Kansas excludes both military personnel and college students. According to Prisoners of the Census, a redistricting reform advocacy group, more than 100 local governments across the country exclude inmate populations when drawing representative districts, such as county commissioners precincts or city council districts.
Some Texas counties exclude inmates when establishing county commissioner precincts. Anderson, Bee, Brazos, Coryell, Childress, Concho, Dawson, Grimes, Karnes, Madison, Mitchell, Pecos, Walker, and Wood counties all have excluded inmate populations when establishing county commissioner, justice of the peace, and constable precincts, according to studies in March and June by Prisoners of the Census. In Anderson and Concho counties, excluding inmate populations prevented the creation of precincts that would have consisted entirely of inmates.
When drawing new boundaries, these counties exclude the populations of felony-level prisons, as well as institutions that house illegal immigrants awaiting deportation hearings. Counties that engage in this practice say it helps protect the one-person, one-vote principle because incarcerated felons and illegal immigrants cannot vote. These counties include population from juvenile detention facilities, which house people up to age 21, because some still may be eligible to vote. This practice affects the drawing of boundaries for the election of other county level offices, such as justices of the peace and constables, as well as designating election precincts. While JPs and constables do not hold representative offices, their boundaries often are drawn to conform to plans for county commissioners courts so that election precincts across the county may be used for all county offices.
Texas counties have wide discretion when crafting county commissioner, justice of the peace, and constable precincts under Art. 5, sec. 18 of the Texas Constitution. These precincts are subject to requirements of the federal Voting Rights Act intended to prevent discrimination against minority voters or dilution of their votes. When these counties submit their plans to the U.S. Department of Justice for pre-clearance under sec. 5 of the Voting Rights Act, they detail which facilities were excluded, arguing that those populations are not eligible to vote and including them would unduly skew the county’s one-person, one-vote goals. Some counties point out that any additional minority population numbers a prison or detention facility might contribute toward creating a minority opportunity district – which is a district with a minority population large enough to select a representative of its choice – would not translate to voting power because inmates cannot vote.
Counting inmates at previous residence
Another approach to counting inmates is to count them at the address where they lived before they were incarcerated. Maryland will use this method for redistricting in 2011, as will New York and Delaware under their recently passed laws.
In Maryland, the first state to implement the law, state officials are seeking to compile an accurate list of previous residences for inmates currently housed there. Their initial step was to gather previous addresses from arrest records and records from Maryland’s Department of Corrections. After examining these addresses, Maryland officials cross checked inmate identification numbers with court records. Sometimes one record filled in gaps in another record. For example, an unusable, fictional address on an arrest record could be supplanted by a correct address from a court document. The resulting data contain usable previous addresses for all but a few thousand inmates, according to the Maryland Department of Legislative Services. The third step will be to contact inmates directly when a usable address cannot be determined from official records.
Once an accurate list is compiled, Maryland will use the data to identify inmates at the addresses at which they lived before being incarcerated. The state will use this adjusted census data during its 2011 redistricting process.
Counting inmates at their previous residences or excluding them from the population for redistricting purposes would affect equal population requirements when districts are redrawn using the new census data. Districts of equal size are intended to ensure that each resident has equal influence with government and elected officials.Courts have strictly interpreted Art. 1, Sec. 2, of the U.S. Constitution, which states that representatives “shall be apportioned among the several states…according to their respective numbers,” as requiring U.S. congressional House seats in the same state to have populations that are as equal as possible.
The courts have allowed some deviation from exact population equality for legislative and other districts when justified. The U.S. Supreme Court held in Reynolds v. Sims, 377 U.S. 533 (1964), that the Equal Protection Clause of the 14th Amendment requires only that state legislative districts be substantially equal in population. Later Supreme Court cases have established that for state legislative districts, the combined total deviation of the largest and smallest districts from the ideal district population cannot be greater than 10 percent. The ideal district population is determined by dividing the total state population by the number of districts.
Debate about where to count inmates
In Texas, inmates are counted for redistricting purposes mostly in the districts where they currently are housed. Advocates for changing the current approach have argued for either counting inmates at their addresses before incarceration or excluding them altogether from population counts for redistricting purposes.
Counting inmates at their previous address
Supporters of counting inmates at their addresses before they were incarcerated say it would create more equitable results under the “one-person, one-vote” equal population principle and would allow the districts from which inmates came to retain the resources they need to serve the inmate population when they return to their districts. They say any administrative challenges associated with identifying addresses can be overcome.
One-person, one-vote. Supporters say counting inmates at their previous addresses would create more equitable results under the “one-person, one-vote” equal district population requirement established by the U.S. Supreme Court in a series of decisions beginning in the 1960s. When districts have equal numbers of people, each person’s vote counts the same as that of a person in a neighboring district. For example, a district with 100 people, 10 of whom are non-voting inmates, has only 90 people who can vote, and thus influence their representative. These 90 people have the same voting power as 100 people in a district with no inmates. Every urban inmate counted as a rural resident decreases the number of voting rural residents required for a rural district. As the number of voting residents declines, the weight of a vote by a rural resident increases. These “phantom” rural residents have significant effects on district composition in Texas. In two current Texas House districts, inmates make up 12 percent of the population. If the inmate population were removed from these districts’ population counts, they would have to expand geographically to be within the allowable equal population requirements.
Effects on district.Inmates’ home communities cannot afford the loss in population and subsequent political clout that follow inmates to where they are incarcerated. Because inmates do not participate in the communities in which they are incarcerated, their population numbers and political power should stay in the community from which the inmates came and are likely to return. Supporters say urban areas lose significant population when community members who commit crimes are sent to rural prisons for incarceration. Large urban areas like Harris and Dallas counties can lose thousands of inmates to rural counties. According to New York University’s Brennan Center for Justice, of the more than 650,000 people who leave prison each year, almost all of them will return to their home neighborhoods. When these inmates return, they will need services and resources their home districts might not have been able to secure due to the temporary loss of population and political power.
Inmate representation.While many legislators may do exemplary work representing inmates temporarily located in their districts, the fact that inmates cannot vote means too many are ignored. Constituent service should be considered a duty of lawmakers, and inflated population counts should not be a reward for having a large inmate population.
Administrative challenges. The challenges of identifying previous addresses for inmates can be overcome once states develop and implement reliable systems for gathering addresses. For instance, local police departments and the courts can be instructed to not accept P.O. boxes as residences, but to require a physical location, as the Census Bureau does. Modern data-base software enables states to adjust census data by counting inmates at their previous residences.
Comparison to other groups.Inmates can be distinguished from other temporary resident groups who are counted where they reside. Those counted in group homes away from their home residences, such as military personnel and college students, are more likely to participate in their communities than are inmates. These other temporary resident groups also are less likely to resettle in their previous communities than are released inmates. Inmates are more appropriately compared to military and U.S. State Department employees serving overseas. For apportionment of U.S. House seats, overseas federal employees are counted in the states where they have “enduring ties and allegiance,” a standard approved by the U.S. Supreme Court in Franklin v. Massachusetts, 505 U.S. 788 (1992). Because both groups usually return to the communities from which came, both should be counted in their home communities.
Opponents of counting inmates at their addresses before they were incarcerated say that inmates should be counted in the districts in which they currently are using resources and that identifying reliable previous addresses for all those who are incarcerated would be administratively burdensome. In addition, opponents say, it would not achieve the one-person, one-vote ideal because a significant number of constituents other than inmates who either cannot vote or are present in a district only temporarily also are counted in the district in which they reside.
One-person, one-vote.Counting inmates at their previous addresses would not achieve the “one-person, one-vote” ideal. Elected officials represent a significant number of constituents besides inmates who cannot vote, such as children and non-citizens, and people who are present in a district only temporarily, such as college students. While these residents also have significant effects on district composition in Texas, they nonetheless are counted as part of the district population where they currently reside. The same principle should apply to those residing in a district during the time they are incarcerated.
Effects on district.Those who are incarcerated should be counted where they are housed because that is where they currently are consuming resources and where their presence is currently felt. While urban counties may lose population when those who commit crimes are sent to rural prisons, rural counties also lose population to urban counties when students go away to college. In addition, there are no guarantees that an inmate will return to a previous address, which is one reason that census officials offer for why inmates are not counted at the address they maintained before being incarcerated. In many cases, it may be years, sometimes decades, before inmates return to their previous communities, if at all.
Inmate representation. Inmates should be counted where they are demanding services from their legislative representatives, which is in the community where they are incarcerated. Legislators from districts that house large inmate populations say they treat their non-voting incarcerated inmates as they would any other constituent. Inmates know their local legislators are responsible for constituent service and they demand and receive such service. In addition, while the former communities of inmates might gain increased political clout by having inmates counted there, this would not improve the representation of the inmates themselves, who do not live there.
Administrative challenges. Counting inmates at their previous addresses would pose administrative challenges, especially compiling an accurate list of previous residences. Compiling an accurate list of addresses is especially important for crafting U.S. House districts, which must have absolutely equal populations, requiring that a reliable address be found for each and every inmate. In implementing its new law, Maryland has found addresses that no longer exist and P.O. boxes listed as addresses, according to Maryland’s Department of Legislative Services.
The Census Bureau has resisted calls to count inmates where they lived before they were incarcerated, saying it is impossible to know if the inmate will live there again. The bureau also says it would have to obtain information from inmates, then tie that information back to a specific address in the inmates’ previous communities. The bureau has neither the resources nor expertise to carry this out across the country because the records kept by state and local officials vary and may not be reliable.
Comparison to other groups.Opponents of counting inmates at their previous addresses say that while federal employees stationed abroad are counted at the address where they lived before being stationed overseas, Census officials say this is because of the reliability of State and Defense Department records and because these groups return to certain specific locations required by their employer. It is sufficiently certain these federal employees, unlike inmates, will return to the communities in which they previously resided. Opponents say that for redistricting purposes, inmates are more appropriately compared to college students and military personnel in barracks in the United States. The census counts these individuals, housed in large group settings, as residents of where they are housed. Most states do the same for redistricting purposes because these groups heavily impact the communities in which they live.
Supporters of excluding inmates from population counts say it would avoid shifts of legislative clout from one district to another and would be simple to administer.
One-person, one-vote. Excluding inmates from population counts for redistricting would substantially further goals of one-person, one-vote by preventing inmates from being used as “phantom” residents that artificially inflate the size of any district.
Effects on district. Excluding inmates also would prevent an unnecessary transfer of political influence to any particular legislative district. Inmates would not be counted in the districts where they are housed but did not willingly locate and cannot participate, nor would they be counted in the districts from which they came but no longer live and might not return.
Inmate representation. While lawmakers still would have to represent and perform constituent services for inmates even if their numbers were excluded for redistricting, constituent representation and service should be treated as a responsibility even without the reward of inflated population numbers.
Administrative challenges. Excluding inmates would be an easy policy to implement because it would not require the onerous compilation of sometimes questionable previous addresses. State officials can readily identify and strip out inmate populations from data the Census Bureau already collects, and many Texas counties have done so in the past for redistricting purposes.
Opponents of excluding inmates from population counts say doing so would cause the population basis of districts to be unfairly skewed.
One-person, one-vote. Excluding inmates from population counts still would not achieve the “one-person, one-vote” ideal because other constituents who cannot vote or who are present in a district only temporarily would continue to inflate the voting power of permanent residents who can vote. Elected officials represent everyone in their districts, not just those who vote.
Effects on districts. Excluding inmates still would require the boundaries of legislative districts with large inmate populations to be redrawn in order to make congressional seats equal and to ensure that the populations of state legislative seats were within the allowable 10 percent deviation. Some districts would have to grow, causing a ripple effect with population taken from other districts to compensate for the removal of inmates from the population base.
Inmate representation. Like everyone else, inmates need to be represented in the Legislature. The most effective voice to hear their concerns is the legislator in whose district they reside. Legislators represent inmates just as they would any other constituent and should be allowed to count these inmates as part of the population of their districts. H – This excerpt was reprinted with permission from the House Research Organization, a nonpartisan department of the Texas House of Representatives that examines state issues and analyzes legislation being considered by the Texas Legislature. To view the report in full, go to http://www.hro.house.state.tx.us/interim/int81-5.pdf