by Aleks Kajstura, Legal Director, Prison Policy Initiative
In January, New Jersey became the 7th state to end prison gerrymandering – the practice of using incarcerated people to inflate the population of rural districts. That marks a milestone for criminal justice policy and democracy: over 25% of US residents now live in a state, county, or municipality that has ended prison gerrymandering.
Going into the 2020 redistricting cycle, California, Delaware, Maryland, Delaware, Nevada, New Jersey, New York, and Washington State will be adjusting their redistricting data to count incarcerated people at their home address when drawing districts.
The Census Bureau counts incarcerated people as residents of the towns where they are confined, though they continue to be constituents of their home districts – and in Maine and Vermont, where incarcerated people retain the right to vote, they are required to vote by absentee ballot back home. When that Census data is used to draw district lines it transfers power away from the home communities of incarcerated people, and gives it to legislative districts that contain prisons.
But an increasing number of states are adjusting Census data to avoid prison gerrymandering. State laws ending prison gerrymandering are a simple state-based solution to a problem that should have been corrected by the federal government.
The bills use states’ administrative records to reassign incarcerated people to their home addresses before redistricting. Ideally, the U.S. Census Bureau will change its policy and count incarcerated people as residents of their home addresses in the 2030 Census, but for now states should be prepared to have their own solutions in place.
New York and Maryland have already passed and implemented similar laws to count people in prison at home for this round of redistricting, and both states’ laws were successfully defended in court. California, Delaware, Nevada, and Washington State passed legislation that will take effect after the 2020 Census. As of February, at least 8 states are considering similar legislation in the current legislative session, including Colorado, Florida, Illinois, Michigan, Nebraska, Pennsylvania, Rhode Island, Virginia, and Wisconsin.
As more states take on the task of adjusting Census data to make it usable for drawing equal districts, the Census Bureau has taken some small but helpful steps. For the first time, the 2020 Census will include correctional population data within the main redistricting dataset (the PL 94-171 file).
Identifying the correctional facilities makes the data-crunching easier for states that end prison gerrymandering on their own, and will be particularly useful for states with short redistricting deadlines, such as New Jersey. This data will give redistricting officials the Census counts of people in correctional facilities at the location of the facility — enabling states to subtract incarcerated people from the prison location and, in conjunction with the state’s own home address data, reallocate them back home for that state’s redistricting.
Other states should follow the lead of the 7 states that have ended prison gerrymandering and ensure equal representation for all their residents.
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