The Howard R. Young Correctional Institution sits between a creek and Interstate 495 in Wilmington, Delaware. For the last ten years, the prison’s 1,281 residents were counted as constituents of Wilmington’s third city council district.

But when local officials sat down to redraw Wilmington’s city council lines after the 2020 Census, they took a new approach: They counted people in the prison at their last known address in Wilmington—and didn’t count them at all if they hadn’t lived in the city.

“Counting people where they are incarcerated during redistricting, it distorts our system of representative government,” said Wilmington Councilmember Shané Darby, who pushed for the change.

Several states, and a growing number of cities and counties across the U.S., have adopted this reform. They’re seeking to end prison gerrymandering—the term advocates use for counting incarcerated people at the facility where they’re locked up, rather than in their home community. The practice typically dilutes the power of urban areas and communities of color, which see higher rates of incarceration, and at their expense boosts white and rural areas where most prisons are located.

But prison gerrymandering affects more than the representation cities receive in statehouses and Congress, where the issue has drawn significant attention. It also distorts representation within a city, affecting the boundaries that define politics at the local level.

That’s the case in Wilmington, Delaware’s most populous city and one where Black residents make up a majority. The city also has the highest rate of incarceration in the state. And not only does a state prison sit within city limits, Wilmington is also home to a facility for people in substance abuse treatment programs and on work release, which itself has about 150 residents.

Delaware passed a law in 2010 ending prison gerrymandering in state legislative maps—but not in maps for municipal or county governments. That left it up to city and county officials to decide whether to do the same for their local districts. 

Predictably, different places made different choices. Now, for the rest of the decade, people in this state will be governed by local maps that follow conflicting standards. This idiosyncrasy extends to several other states, with local officials’ choices on prison gerrymandering typically receiving little scrutiny.

In Wilmington, Darby and other officials voted to follow in the state’s footsteps in September 2021. Darby said the approach was designed to better reflect the city.

“When you divide up communities, you diminish their power and their voice,” she said.

In the city’s third district, that meant subtracting the 1,281 residents at the prison from its population count. But it also required adding back 281 residents of the district who were incarcerated around Delaware—some at the prison in Wilmington, but many in other parts of the state.

Wilmington’s third district, on the city’s east side, had the highest share of Black residents of any of its eight council districts as well as the largest number of residents who are incarcerated in Delaware. Several census tracts within the district have lower median incomes than the city as a whole.

The new approach to map-drawing left Wilmington’s third district with fewer residents than under the old formula. So the committee shifted its boundaries, adding several downtown blocks to ensure it had a population in line with other districts.

The end to prison gerrymandering enjoyed wide support among the politicians redrawing the lines in town.

The city finalized its maps in December 2021, and voters will cast ballots in the new districts for the first time in 2024. Separately, the city council adopted a measure sponsored by Darby to continue drawing maps this way in future cycles of redistricting.

“I was glad that we were able to count folks back in their home district and not overinflate the population of the district that has the facility,” said Dwayne Bensing, legal director of the ACLU of Delaware. In a newspaper editorial, Bensing wrote that Wilmington “avoided a prison gerrymandering fiasco.”

He told the Center for Public Integrity and Bolts that the redrawn districts weren’t likely to lead to huge political changes in the city, but in Wilmington’s compact districts, with about 8,800 people each, it’s a meaningful step.

The new approach “ensures that every person in Wilmington has an equal say in their government,” said Mike Wessler of the nonprofit Prison Policy Initiative, which tracks reform efforts across the country.

A rising effort to restrict prison gerrymandering

Exploding prison populations in the 1980s and 1990s, fueled by America’s war on drugs, reshaped communities and political maps across the country. They also added weight to the issue of prison gerrymandering.

The city of Anamosa, Iowa, became a poster child for challenges at the local level: In one of its city council districts, about 95% of residents were incarcerated in a state prison. (After a local man won the seat with two votes in 2006, he told a reporter, “Do I consider [incarcerated people] my constituents? … They don’t vote, so, I guess, not really.”)

Prison gerrymandering “distorts our democracy,” Wessler said. “It fundamentally alters political representation, and that harms every single person, whether they live one mile from a prison or 1,000 miles from a prison.” He said local governments were early leaders on the issue, with over 200 adopting reforms in the 2000 and 2010 cycles.

In 2010, New York and Maryland passed laws ending prison gerrymandering at the state legislative level. By the next cycle, a decade later, over a dozen states had passed similar laws. 

Nearly half of Americans now live in a state that has taken action to end the practice in drawing statewide maps, the Prison Policy Initiative estimates.

Wessler called the adoption of these laws “a sea change” from the situation two decades ago.

States that ended prison gerrymandering heading into the last redistricting cycle were nearly all run by Democrats, with a wave of newcomers passing the reform in rapid succession over the past four years — including Colorado, New Jersey and Virginia. In these states, with vast disparities in the geography of where people are arrested and where they serve prison terms, legislative maps now count incarcerated people at their last known address.  

The issue has attracted attention in some areas that tilt Republican. Earlier this month, Montana’s state Senate passed a bill to end prison gerrymandering after the state’s bipartisan redistricting commission unanimously supported the change.

But any movement to end the practice altogether would have to come at the federal level. With that in mind, a group of three dozen advocacy organizations are calling on the U.S. Department of Commerce to change the tally in the 2030 Census. They write in a letter that “counting incarcerated people at home ensures that communities hit hardest by mass incarceration get equal representation in state and local governments.”

Even within a state, a patchwork of laws

The combination of state and local laws leaves some Americans without any representation.

Take the situation in Delaware. Wilmington ended prison gerrymandering, but Newark, the state’s third most populous city, didn’t. That means a Newark resident incarcerated in Wilmington wouldn’t be counted in a city council district in their hometown — and also wouldn’t be counted in the city where they are incarcerated.

For the purposes of city council representation, they are counted nowhere.

Muddying the waters further: New Castle County, which includes Wilmington, still draws lines for its own districts that count people as living in prison.

“This fits within a broader scheme of a patchwork of laws governing voting rights within the state of Delaware,” said the ACLU’s Bensing. Several states take a scattershot approach to the issue, with inconsistent requirements for congressional districts, state legislative districts and even school boards.

A similar dynamic has played out in Nevada: The state ended prison gerrymandering in congressional and state legislative districts, but left decisions at the city council level up to local governments. In the most recent cycle, Las Vegas counted incarcerated people at their last pre-prison address, and Reno did not.

Some of these asymmetries stem from state legislators’ decision to exempt local governments from the laws they passed. Kathay Feng, an advocate at the voting rights organization Common Cause, said this may have been a tactic in some states to avoid paying the cost of local changes, or to sidestep conflicts with “home rule” laws that give localities wide latitude.

Darby, the Wilmington councilmember, was happy to bring her city in line with the way Delaware draws state legislative districts.

Now, she says she’d like to see governments include incarcerated people in the political process. Delaware currently bars people in prison with felony convictions from voting, and it also disenfranchises thousands of people on probation or parole. The state makes it more difficult to regain voting rights than most in the Northeast.

“How do we take it a step further?” Darby asked. “They need rights to vote — not everybody, but some people who are in prison should still be able to vote and have their voices be heard.”

Currently, only Maine, Vermont and Washington, D.C., allow people in prison to vote. Many Americans held in local jails also retain their right to vote but find it nearly impossible to cast a ballot. Advocates say that this “de facto disenfranchisement” affects the majority of the roughly 445,000 people in American jails who have not been convicted of a crime. A handful of states and counties around the U.S. have made a push to facilitate jail voting, including establishing precincts in jail, but some local officials have resisted such efforts.

As a result, thousands of Americans are counted for the purpose of redistricting where they are detained, increasing that area’s political clout, without the ability to participate in local elections.

And until the Census Bureau changes the way it counts incarcerated people, advocates and elected officials will be forced to address prison gerrymandering one place at a time. 

“The city of Wilmington is small, and the population of the prison wasn’t anything crazy,” said Darby, who sponsored the measure to permanently end the practice in the city. “But I thought it was important to make that point.”

The post How One City Ended Prison Gerrymandering appeared first on Bolts.

Criminal convictions have ramifications far beyond the explicit sentences imposed on individuals, impeding their access to housing and blocking them from jobs for the decades that follow. Different states open the door to varying degrees for people to have their records cleared, but even for eligible individuals, the process is so difficult—and costly—that few people take advantage of it.

Reform advocates have had recent success targeting both sides of that problem. Last year, Pennsylvania expanded who is eligible to have their records sealed, and made the process automatic for some. (The latter step is in the implementation phase.) The state may soon have company.

Earlier this month, the Utah Legislature passed a “Clean Slate” bill, similar to Pennsylvania’s, to automate some of its expungement process. And reformers in Delaware are working to increase people’s eligibility for expungement in the first place; state law currently provides adults no opportunity short of a pardon to have past convictions expunged.

“If you address mandatory minimums, and sentencing reform, and prison conditions but neglect to address barriers of re-entry, then people are going to be trapped in cycles of incarceration and reincarceration where they don’t have job opportunities on the other side,” said Rebecca Vallas, the vice president for the Poverty to Prosperity Program at the Center for American Progress, a liberal think tank.

Delaware’s proposed legislation (Senate Bill 37) would delineate cases in which expungement petitions must be granted (arrests where there was no conviction and some lower-level convictions). It would also delineate other situations, including some felony convictions, where expungement is at the discretion of courts. SB 37 intends to “protect persons from unwarranted damage which may occur when the existence of a criminal history continues indefinitely,” according to a draft provided to the Political Report.

State Senator Darius Brown, a sponsor of the bill, told me that removing the “barriers and impediments” that people with convictions will promote “economic opportunity and economic justice,” and provide “opportunity for upward mobility.” “I don’t think that someone’s criminal record should be a life sentence,” Brown said. A new study conducted at the University of Michigan found that Michiganders who received an expungement saw their wages go up by more than 20 percent within a year, boosted by an easier time navigating the job market.

This bill is part of a larger package of proposals announced last week by a coalition of legal, legislative, and associative actors. Proposals include lowering charges for drug offenses, limiting the treatment of minors as adults, and constraining the stacking of charges. Some would codify into law Attorney General Kathleen Jennings’s new guidelines for state prosecutors.

SB 37 would expand eligibility for expungement in Delaware, but individuals would have to take action to benefit. Brown told me that the coalition pushing the bill would need to continue its work to ensure “that people are informed and educated” and organize events to promote access.

Unlike Delaware, Utah already allows adults with misdemeanor or felony convictions to petition for expungement after a set period of time.

But people hoping for expungement must file petitions and face multiple fees and filing requirements. In Utah, as elsewhere, many people do not apply or face obstacles when they do. The University of Michigan study found that 90 percent of eligible Michiganders do not apply for reasons ranging from cost and bureaucratic complexity to insufficient information. These are issues in Utah as well. Noella Sudbury, director of the Salt Lake County’s Criminal Justice Advisory Council, asked impacted individuals why they had yet to apply during an “expungement day” her office organized last year. “The two top reasons were that it’s too overwhelming and complicated, and it’s too expensive,” she said.

Vallas, who helped develop the original Clean Slate bill in Pennsylvania, emphasized the procedural maze that individuals need to surmount to benefit from expungement in nonautomated systems. The point of an “automatic clearing of criminal records,” she said, is for people to not “have to go through that one-off process of having to figure out a bunch of complicated legal documents, going in front of a judge, filling court dockets.”

Utah’s Clean Slate legislation (House Bill 431) would create such an automatic process. It would apply to people who were acquitted and to people who were convicted of some misdemeanor offenses after waiting periods of up to seven years after sentencing. The bill “shifts the burden away from the individual to the government,” said Sudbury, who advocated for the legislation alongside its sponsor, state Representative Eric Hutchings, and a coalition of Utah groups.

“It just says we have the technological tools to identify who you are and give notice to all those agencies that your record is expunged, and if after a period of time, you would have your record expunged anyway, then we will expunge it for you,” Sudbury said.

The bill has passed both legislative chambers unanimously and is now on the governor’s desk.

Major avenues for further reform remain. Pennsylvania’s Clean Slate bill automated the process to seal rather than expunge records, which would still be accessible by some parties such as local law enforcement. Access to Utah’s expunged records would be more restricted. Utah’s legislature also adopted House Bill 212, which bars employers from asking about expunged convictions. In addition, Sudbury said Utah should revisit the connection between debt and expungement. “If you have open debt you wouldn’t be eligible,” she said. Paying off court fines and fees hinges on an ability to gain a stable income, and this is hindered as long as people retain a record.

Clean Slate bills that would automate existing expungement processes have been introduced in a number of other states, including in California, where it is championed by San Francisco District Attorney George Gascón. In January, California began implementing a law that automates the initiation of the expungement process for marijuana-related convictions.

Update: The original article has been corrected to reflect that the Utah legislature passed House Bill 212.

The post Reformers Push to Expand and Automate Expungement appeared first on Bolts.

Attorney General Kathleen Jennings released a memo in February outlining new policies that Delaware prosecutors should follow to “increase fairness and proportionality in the system” and “reverse” the “high rates of incarceration and recidivism.”

Delaware is a rare state without independently elected prosecutors; the attorney general appoints them and sets policy, much like district attorneys do with their deputies elsewhere. This made the state’s attorney general election in 2018 a hot spot for criminal justice reform.

The memo covers a wide range of areas from charging and plea-bargaining practices to youth justice and immigration. It instructs prosecutors to increase the use of diversion (for instance when it comes to offenses that involve marijuana), curb the use of money bail, limit the duration of probation, and take into account possible effects of prosecutorial decisions like deportation.

It pays special attention to charging decisions and plea negotiations, areas of great prosecutorial discretion. It adopts a presumption against stacking multiple charges that come with mandatory minimums—a practice that empowers prosecutors in plea bargaining—and against tying diversion programs to a guilty plea. To directly reduce incarceration, the memo also recommends that deputies seek the lower end of sentencing guidelines when dealing with “routine misdemeanor or felony cases,” and that they seek probation or home confinement in low-level cases where the guidelines call for a sentence ranging from “0 to 12 months.” Much of the memo focuses on such low-level offenses, but there is also a recognition that all sentencing practices ought to be re-examined; one provision requires that prosecutors ask for authorization before seeking a sentence exceeding 20 years.

Policies in the memo are introduced as “presumptive guidelines.” Many are described as steps that prosecutors are “encouraged” to pursue. For instance, the memo states that “we will continue to encourage alternatives to prosecution for misdemeanor possession of marijuana.”

I asked the attorney general’s office whether this language is a commitment to not prosecute such cases (a commitment some prosecutors have made), and whether there are situations where prosecutors may pursue charges of simple marijuana possession for quantities under 175 grams, which is the threshold for a misdemeanor offense. Carl Kanefsky, a spokesperson for the attorney general, told me via email that the memo indicates a “strong presumption to divert the accused from prosecution,” but that this is still a matter of individual assessment since by “virtue of being presumptive, these policies refrain from a one-size-fits-all approach.”

The reach and scope of these reforms, therefore, still hinge on how deputy prosecutors interpret them and how much latitude they are given.

“What we know is that professional cultures are hard to change,” Ryan Tack-Hooper, the legal director of the ACLU of Delaware, told me. “If prosecutors ignore the guidelines, or think every case is an exception, then the change will be limited. But if they follow it faithfully then it’s a game changer.”

Tack-Hooper praised the memo’s content as “very strong,” and “totally contrary to where prosecutors were a decade ago.” But he also noted the memo’s “reluctance” to loosen prosecutorial discretion and pointed to areas needing stronger commitments. “You could just say we’re not going to charge kids under 13 with a crime, period,” he said. Still, Tack-Hooper insisted that there is no getting around the need to modify deputy prosecutors’ behavior because impacting how they exercise discretion will always be crucial to reform. “Whether it will cause a sea change depends on how effective they are at changing the culture in addition to putting out these policies,” he said of the memo. It will not be easy for advocates to track whether this culture changes and apply public pressure, Tack-Hooper warned, because the memo does not improve data-gathering and transparency on matters like racial disparities in charging decisions. “If you open that to public scrutiny, it reinforces their ability to make the cultural changes that they’re trying to make,” he said.

Other state proponents of criminal justice reform also praised the memo’s goals and provisions, while outlining avenues to make reform more robust.

Chris Johnson, a lawyer who ran for attorney general in 2018 on a platform of “ending” mass incarceration, told me that the memo is “a victory for the criminal justice movement” that would not have been possible “three years ago”; he called the recommendation that prosecutors seek the lower end of sentencing guidelines “groundbreaking.” But he also warned that implementation will be the hard part, and he regretted that the memo did not go further on matters like seeking expungements and sentence modifications. Johnson believes that the attorney general should expand the resources devoted to reviewing past convictions and support safe injection sites. “To mention addiction and illness and not mention safe injection sites is wrong,” he said.

Charlotte King, co-founder of the Southern Delaware Alliance for Racial Justice, called on all other public officials to take stock of their responsibility and role regarding mass incarceration, and “to be as thoughtful as the attorney general in terms of looking at those barriers that really prevent change.” For instance, she called on lawmakers to codify the memo into law (some are reportedly looking to do so), and she pointed to the urgency of strengthening the prerelease services that the Department of Correction could provide.

“If you want to make transition back to the community a reality,” King said, “then you have to provide those services, and without services you may as well just keep people in jail because there’s nothing for them outside.” She added, “many agencies will have to work together if you really want maximum criminal justice reform.”

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