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.

For years, State Representative La Shawn Ford, a Democrat who represents parts of Chicago and Cook County, sponsored a bill to end prison gerrymandering in Illinois, and for years it went nowhere. 

This practice consists of counting incarcerated people at their prison’s location rather than their last residence for the purpose of redistricting. It skews political representation away from Chicago and Cook County, where incarcerated people disproportionately come from, and toward the whiter downstate areas where all Illinois state prisons are located.

To make matters worse, people incarcerated over felonies cannot vote in Illinois, so their physical presence grows the clout of communities that they cannot influence. With prison gerrymandering, Ford says, “you’re counting bodies but you’re not giving them the care that they need.” Areas where prisons are located “don’t count [prisoners] when it comes to schools, hospitals, resources. They don’t count them as people. They only count them as numbers for the sake of using them for apportionment.” 

In January, the state legislature finally passed his bill as part of an omnibus package that contained many other changes to the criminal legal system such as ending cash bail and curtailing driver’s license suspensions. Governor J.B. Pritzker, a Democrat, signed it this week, a major success for advocates who have long championed these reforms.

But a clause inserted into the law significantly delays implementation of the measure concerning prison gerrymandering. 

The bottom line is that the state’s district maps will not be fixed until 2031.

Ford’s original bill instructed the state to end prison gerrymandering and gather the information necessary to do so “immediately.” But the version passed via the omnibus this year won’t go into effect until 2025. That’s when it instructs the Board of Elections to work with the Department of Corrections to adjust how the state uses the federal Census Bureau’s data on incarcerated people.

So when Illinois lawmakers draw the maps that will be used throughout the 2020s later this year, they will still be counting people where they are incarcerated, often hundreds of miles from home. 

Advocates are now frustrated that prison gerrymandering will distort the state’s political districts for yet another decade. And they’re hoping that state officials still return to the issue in the coming months to fix it.

“If there is a consensus that this is an unjust way of counting population, and that counting population really matters for our government functions and the services that residents receive in the community, then it matters in 2021, and it matters for the next 10 years,” Louisa Manske,  the policy and communications director at Chicago-based Workers Center For Racial Justice, told The Appeal: Political Report. 

Another limitation of the new reform is that—even once it is implemented—it will only change how the state legislature’s districts are drawn. It does not mandate an end to prison gerrymandering for congressional districts, nor for local districts such as for city council. That said, prison gerrymandering distorts state maps to a far greater extent than federal maps, since the number of incarcerated people is a much smaller share of congressional districts’ population.

Ryan Tolley, the policy director at Change Illinois, an organization that advocates for fairer elections, says he is “disappointed” by the provision that makes the measure effective in 2025. 

However, Tolley, as well as Manske, credited the Illinois Legislative Black Caucus members for ensuring that the No Representation Without Population Act would be included in the omnibus package, at least enshrining the principle that the state should move away from prison gerrymandering. 

And he, too, criticized lawmakers from districts with prisons for being indifferent to the conditions in the facilities, even though incarceration amplifies their power, in Illinois as elsewhere. “There are no elected officials downstate holding town halls or reaching out to the prison population, asking what resources do you need when you’re released so we can break the cycle of recidivism,” Tolley said. 

State Representative Justin Slaughter and State Senator Elgie Sims, members of the Illinois Legislative Black Caucus who shepherded the omnibus package, did not reply to requests for comment on what considerations or negotiations led the prison gerrymandering measure to be delayed and whether they think it is feasible to change the rules this year.

To end prison gerrymandering, states have to first adjust the data prepared by the Census Bureau, which counts incarcerated people where they are imprisoned. (The bureau rejected calls to change this practice at the federal level.) They have to subtract people from the counts of the places where they were detained and add them to the counts of the places they resided beforehand.

Although this process is not immediate, the bill was sitting in the legislature for years during which the relevant agencies—in the version that passed, mostly the Illinois Department of Corrections and the state Board of Elections—could have done this work. 

Manske and Tolley both believe that the requisite data could have been assembled in time for the upcoming round of redistricting even if the process had only begun in early 2021.

This “would have been a tight timeline,” Tolley said, “but I think we could have gotten it together in time for a remap.”

Manske even vowed to continue pressing for state politicians to revisit the issue in coming months.

“The Illinois Department of Corrections does extremely well in the resource department,” she said. “We flood it with money, and we should be able to have a clear picture of who is incarcerated and what their districts are.”

A spokesperson for the Department of Corrections said the agency has much of the information the law asks it to share starting in 2025. “IDOC already collects self-reported data on the addresses of those who are incarcerated,” Lindsey Hess, the agency’s public information officer, said in an email. “Any additional time would be used to address any inaccuracies or changes to the data.” Hess said the agency took no position on the bill during the legislative debates.

A spokesperson for the Board of Elections also said that his agency “didn’t have discussions about the effective date” of the reform with lawmakers, though he was more circumspect when asked about his agency’s position on the timeline of implementation. 

“The systems are not in place at this time and the later effective date will ensure that the State Board of Elections produces the correct data as required by law,” Matt Dietrich, the board’s spokesperson, said via email. “When completing redistricting data, time is essential for the production of good data. Additional time has the added benefit of putting processes in place to ensure the data sets are correct and verified for accuracy.”

Aleks Kajstura, the legal director of the Prison Policy Initiative and a national expert on prison gerrymandering, agrees with state advocates that there is still time for Illinois to prepare its data in time to fix the issue this cycle—but only if there is “political will.” 

But political will on this issue is what was largely absent from Springfield in the first place, as Ford’s bill languished in the legislature for years. 

In five other states governed by Democrats, lawmakers rushed over the past 20 months to adopt laws against prison gerrymandering in time for drawing the legislative maps that will be used for the next decade.

Those states—Colorado, New Jersey, Nevada, Virginia, and Washington—have passed such reforms since May 2019. Until that date, only California, Delaware, Maryland, and New York  had done so, years earlier.

Still, that means that 40 states other than Illinois will also use prison gerrymandering when drawing their maps this year. This includes other Democrat-run states, such as Connecticut and Oregon, where lawmakers from prison districts have fought proposed changes in recent years.

Keisha Morris Desir, the Census and Mass Incarceration project manager at Common Cause, a national organization that advocates for voting rights and other issues, says this connection is crucial, and she still has hope that some other states including Massachusetts and New Mexico may change their rules in coming months. 

And in Illinois, Manske points to a need for broader reforms. The new law specifies that the adjusted population counts will not be used to determine how state and federal funding is distributed, a provision that Manske wants to see removed. The unequal geography of mass incarceration, Manske said, “dilutes funding and representation in majority Black districts that are disproportionately impacted by mass incarceration,” while “inflating democratic representation unjustly in prison districts, and creating financial incentives in prison districts to maintain those systems.”

Another issue is that Illinois compounds prison gerrymandering by preventing people who are incarcerated for a felony from voting, unlike in Washington, D.C., Maine, and Vermont.

“Perhaps we would be further along in transforming the criminal legal system if people were held more accountable to those that are behind the walls,” U.S. Representative Ayanna Pressley of Massachusetts told The Appeal in 2019.

The juxtaposition of felony disenfranchisement and prison gerrymandering in Illinois doubly ruins this promise of accountability. It gives the people living in areas around prisons more representation, and it altogether denies a ballot to the tens of thousands of people who are detained in them and are disproportionately Black and Latinx.

Ford, the state representative who sponsored the bill against prison gerrymandering, told The Political Report that he also supports extending voting rights to all incarcerated people. “One person, one vote,” he said, invoking a legal rule that bars gerrymandering practices that would create districts of unequal population to make the case for ending felony disenfranchisement as well.

Jay Young, executive director of Common Cause Illinois, agrees that enabling people to vote from prison is essential to addressing the underlying issues that fuel mass incarceration. “To respond to the issues that brought somebody to [prison] in the first place, participating at the ballot box … is an excellent place to start,” he said.

The post Illinois Delays End of Prison Gerrymandering By a Decade appeared first on Bolts.

Virginia is the latest state to end prison gerrymandering, which is the practice of counting incarcerated people where they are detained rather than at their last known residence for purposes of redistricting. 

The adoption of Senate Bill 717 and House Bill 1255 this week paves the way for Virginia to draw fairer maps. The identical bills, which also make other changes to redistricting criteria, were passed by the Democratic legislature in February. Democratic Governor Ralph Northam approved them last week under the condition that lawmakers adopt a technical change, which they did on Wednesday. 

Virginia adds to a tidal wave of state action against prison gerrymandering that seemed unthinkable just a year ago.

Since May 2019 alone, five states—Colorado, New Jersey, Nevada, Washington State, and now Virginia—have adopted laws against prison gerrymandering. Until then, only four had done so—California, Delaware, Maryland, and New York—and all years earlier.

When they next draw their legislative maps, and in most cases their congressional and local maps as well, these states will count people where they last lived.

“The  reality is that when they’re released from prison and they’re back in their home locality, that’s where they need resources,” said Tram Nguyen, co-executive director of New Virginia Majority, a progressive group that supported Virginia’s laws. “It’s their home safety nets that will be important, and so it’s important that they be counted in their home localities.”

When New Jersey adopted a similar reform in January, Aaron Greene, associate counsel at the New Jersey Institute for Social Justice, told me that as long as states maintain prison gerrymandering, “the system is set up to take citizens out of their communities… and increase the political power of [other] communities. They are just bodies counted. Legislators don’t consider them citizens but they play a role in their political power.” 

Prison gerrymandering shifts political power toward the typically more rural and whiter communities where prisons are located, and away from cities and areas with more Black residents that suffer the brunt of overpolicing and incarceration.

Besides skewing statewide maps, it can gravely distort the boundaries of local districts, such as those of city councils and county commissions, based on where a jail or a prison is located. According to the League of Women Voters of Virginia, seven Virginia counties drew a district this decade where at least 25 percent of the population is incarcerated; in Lunenburg County, there is a district where two-thirds of a population is incarcerated. 

In Virginia, the incarceration rate among African Americans is five times higher than among whites, and consequent political inequalities have been a longtime source of concern. 

“When we’re talking about the voting bloc and voting power, African American votes get watered down when people who cannot vote are included in the vote totals,” Democratic Delegate Marcia Price told the Virginia Mercury in February. Virginians in prison over a felony conviction are indeed barred from voting, on top of getting counted in a way that amplifies the representation of areas they are not from.

The new laws do not change this prohibition on voting.

In fact, Virginia’s felony disenfranchisement rules are exceptionally harsh: Anyone convicted of a felony loses the right to vote for life. Since 2016, though, the state’s governors have systematically restored people’s voting rights via executive action upon completion of their sentence — including terms of prison, probation and parole. Terry McAuliffe began that policy in 2016, and Northam followed it.

Democrats’ legislative takeover in November 2019 opened the door for Virginia to further expand voting eligibility.

In December, Democratic Senator Mamie Locke filed a constitutional amendment to abolish felony disenfranchisement and guarantee the right to vote to any voting-age citizen. In practice, SJ 8 would enfranchise people on parole and probation, as 18 states already do, as well as incarcerated people, as is the case in Maine and Vermont. 

Organizations that champion voting rights, such as the ACLU of Virginia and New Virginia Majority, support this measure. “In our racially discriminatory criminal legal system, in order to really bring racial justice to the ballot box, the only way to assure that is to get rid of that old Jim Crow provision completely and make sure that the fundamental part of democracy is protected for all and everybody has a right to vote, 18 and over,” Claire Gastañaga, executive director of the ACLU of Virginia, told me.

She added, “We can’t be in a position where government gets to choose who votes. We need to be in a position where we decide who the government is.”

Others have proposed intermediate steps. McAuliffe told me in September that the legislature should codify his 2016 executive action and automatically restore voting rights upon completion of a sentence. “The governor should not be involved, it should be automatic,” McAuliffe said. Gastañaga echoed this point that voting rights can’t be up to a governor “deciding to be nice.”

In its 2020 session, the Virginia legislature took no action on either version of these changes. But no time was lost, state advocates told me, because reforming felony disenfranchisement requires activating Virginia’s lengthy constitutional amendment process: Two consecutive legislatures must pass an amendment, before it is placed on the ballot. So lawmakers would need to adopt a measure in 2020 or 2021, and then again in 2022 or 2023. 

“Our goal is to have it pass in 2021, then in 2022, and on the ballot for voters in November 2022,” said Nguyen of SJ8. She described its introduction this year as “an organizing tool to use as we organize ‘right to vote’ chapters across the state, which is an effort being primarily driven by returning citizens.” She added, “This is an opportunity to lay a stake in the ground and say that voting rights are for everyone.”

Virginia’s newly Democratic government adopted other voting-rights laws in 2020; it enabled automatic and same-day voter registration, restricted voter ID requirements, and made voting by mail easier. 

Gastañaga warned that future legislatures could try to erode these accomplishments, and she touted SJ 8 as enshrining the right to vote against broader encroachments than felony disenfranchisement. “The only thing that will prevent them to do that is a constitution that says that you have a right to vote that cannot be abridged by law,” she said.

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Upon taking power in states besides Virginia, Democrats have prioritized adopting a similar slate of voting-rights measures. 

But only over the last year did laws against prison gerrymandering join that immediate voting-rights agenda. (So far only Democratic-run states have adopted such laws.) This trend has coincided with the increased salience of reforms that deal with felony disenfranchisement.

Still, some bills against prison gerrymandering derailed in that same timeframe. In Connecticut and Oregon, they ran into lawmakers representing districts that contain prisons, and which stand to lose some political clout. “The problem when we talk about mass incarceration is that we can’t bring every voice to the [State] Capitol because many of them are behind bars,” Connecticut Senator William Haskell, a Democratic proponent of ending prison gerrymandering, told me last year.  

Forty-one states remain that have taken no action against prison gerrymandering. Seven have fully Democratic governments, including Connecticut, Hawaii, Illinois, Maine, New Mexico, Oregon, and Rhode Island; in Massachusetts, Democrats have a veto-proof majority. 

The clock is ticking for them to act by the next decennial redistricting, which is scheduled to happen over the next two years. By delaying the census, COVID-19 may slightly postpone states’ timeline in a way that gives this reform additional time.

The post Virginia Ends Prison Gerrymandering, the Latest Chapter in a Recent Tidal Wave appeared first on Bolts.

Colorado hit two milestones this month. It abolished the death penalty, a long-sought win for criminal justice advocates.

“The state of Colorado is out of the killing business,” Denise Maes, the policy director at the ACLU of Colorado, told the Political Report.

Colorado also ended prison gerrymandering, which is the practice of counting incarcerated people at their prison’s location rather than at their last address during redistricting. This practice shifts power from cities and more diverse communities, which suffer the brunt of mass incarceration, to the more white and rural areas where prisons are often located.

Governor Jared Polis, a Democrat, signed these two bills into law in recent days; the legislature had adopted them in February.

On Monday, Polis also commuted the death sentences of all three people on Colorado’s death row. They will now each serve life sentences.

Efforts against the death penalty and against prison gerrymandering have each gained considerable momentum just over the past two years.

Colorado is the 22nd state to repeal the death penalty, and the third since the fall of 2018 (alongside New Hampshire and Washington). It’s also the eighth state to end or restrict prison gerrymandering, and the fourth just over the past year (alongside Nevada, New Jersey, and Washington).

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Colorado has not executed anyone since 1997; it has been under a governor-imposed moratorium on executions since 2013. 

Still, advocates say they fought to abolish the death penalty for this pause in executions to not depend on who the governor is. They also say abolition is important for death row appeals to not drain resources useful elsewhere, and for DAs to stop using the threat of a death sentence to pressure people into pleading guilty. Some DAs lobbied against the legislation on the grounds that they need to exert that sort of pressure. 

Colorado’s reform also adds to the case that the U.S. is turning away from capital punishment. “We’re one piece of a much larger national conversation,” said David Sabados, the executive director of Coloradoans for Alternatives to the Death Penalty. “The country is one state closer to having a majority of states ban the practice.”

House Bill 100 was largely carried by Democrats. But it would not have passed the Senate without the support of GOP senators.

After the push to abolish the death penalty faltered in the Senate in 2019, state groups focused on persuading undecided senators. In January, the Denver Post reported that three GOP senators had swung to support abolition, virtually ensuring its success. One of them, Jack Tate, signed up as a prime sponsor alongside Democrats Jeni James Arndt, Adrienne Benavidez, and Julie Gonzales. (Owen Hill and Kevin Priola were the other Republicans to back repeal.)

Similarly, in New Hampshire last year, the legislature overrode the governor’s veto of a bill abolishing the death penalty when some GOP lawmakers joined Democrats.

Polis also offered clemency to all three people on death row in the state, Nathan Dunlap, Sir Mario Owens and Robert Ray. They will now serve sentences of life without the possibility of parole. “The commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado,” Polis said in a statement.

Commutations were necessary if Polis wanted to clear Colorado’s death row because the law he signed is not retroactive. It only repeals the option of the death penalty for offenses charged after July 1, 2020. More people could still be sentenced to death in the coming months given that the law only comes into effect in July; there are active cases where Colorado DAs are seeking the death penalty. But Polis’s actions today provide a hint of how he might handle future death sentences.

He had already signaled last year that he would issue commutations if the legislature voted to abolish the death penalty.

All three people who were on Colorado’s death row until today are African American men who went to the same high school, the Denver Post’s Alex Burness has pointed out. That’s in line with the racial gap and geographic disparities in who gets sentenced to death elsewhere in the country.  

Two of those men were convicted of the 2005 murders of Vivian Wolfe and her fiancé Javad Marshall Fields, who is the son of Senator Rhonda Fields, a Democrat. Fields, who has long fought abolition, took a leading role again in opposing HB 100 when it was heard in the House in January.

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Colorado is home to the county where the prison population represents the highest share of the overall population—Crowley County—according to the Prison Policy Initiative.

Prison gerrymandering has increased the power of areas like this where prisons are located. HB 1010 will end this practice in Colorado.

When the state next draws its maps, it will count incarcerated people at the place they last lived rather than at their prison’s location. 

People in prison “have no real connection to their place of incarceration,” Kerry Tipper, a Democratic representative who sponsored the bill, told the Political Report in a written message. “In places like Colorado where you have big rural/urban divides, this is particularly striking. We are simply using people — moving their political power to a place they don’t want to be in and have no connection to.” 

This law addresses congressional and legislative districts; counting people at their last place of residence will remain optional for some forms of local redistricting. But Aleks Kajstura, legal director of Prison Policy Initiative, said that “as a practical matter prison gerrymandering has been ended on all levels” since “county and school board districts are already required to avoid prison gerrymandering by statute” and “the municipalities that we looked at did the same on their own.”

Lawmakers from districts that house prisons resisted the reform. Those who represent Crowley County (Senator Larry Crowder and Representative Richard Holtorf) voted against it. So did Senator Jerry Sonnenberg, whose district contains four prisons, and Representative James Wilson; 6 percent of the people counted as living in Wilson’s district are in prison, Burness reported in the Colorado Independent. All four are Republicans. 

Having a prison “in the community … affects the entire community,” Sonnenberg told Burness, so counting them elsewhere would “do an injustice to the communities that actually holds those prisons.”

The bill’s proponents reply that politicians from areas with prisons do not treat incarcerated people as constituents. “We spoke to several elected officials who represented large populations of incarcerated people and asked if they had ever held a town hall in a correctional facility,” Tipper and James Coleman, its lead sponsors, wrote in a Denver Post opinion article. “No one knew how many inmates were in their district, and only one had ever met with incarcerated individuals in their district.” The advocacy organization FAMM (Families Against Mandatory Minimums) has challenged lawmakers around the country to visit a prison. 

Colorado is the eighth state to adopt a law against prison gerrymandering. Virginia’s legislature adopted a similar bill this session, and it now sits on the governor’s desk.

The clock is ticking for states to reform this issue by the next round of redistricting.

In changing where incarcerated people are counted, though, Colorado will still not count their voices. People in prison over a felony conviction won’t be allowed to vote, as is mostly the case in all states but Maine and Vermont. In 2019, Colorado restored the right to vote to all voting-age citizens not presently in prison. Taking the additional step of fully ending disenfranchisement in Colorado most likely requires a constitutional amendment and a referendum.

“I would support ending disenfranchisement,” said Tipper, calling it a “good thing for people to engage in their government and stay connected to their home communities. The average stay at DOC [the Department of Corrections] is 3 years. We want to ensure folks have something to go back to and staying (or getting) engaged in their community decision-making keeps people connected and motivated.”

The post Colorado Abolishes the Death Penalty and Ends Prison Gerrymandering appeared first on Bolts.

Most states draw political maps by counting incarcerated people at their prison’s location, rather than at their most recent address. Known as prison gerrymandering, this practice shifts political power from cities and more diverse communities, which suffer the brunt of mass incarceration, to the disproportionately white and rural areas where prisons are often located.

New Jersey is ending prison gerrymandering in legislative redistricting, the seventh state to do so.

Governor Phil Murphy will sign Senate Bill 758 into law on Tuesday morning, his office has told the Political Report. The legislature passed the bill last week.

SB 758 provides that, when New Jersey redraws its legislative districts next year, it will count incarcerated people at their most recent residence. 

“Today New Jersey puts an end to the process of unfairly skewing districts and the resulting imbalances in our state representation,” said State Senator Nilsa Cruz-Perez, a Democrat, in a press release sent out by Murphy’s office.

The racial skew caused by prison gerrymandering has been acute in New Jersey. The practice, which draws comparisons to the Three-Fifth Clause, has reduced the political representation of counties like Camden and Essex (home to Newark), where a disproportionate share of the people New Jersey incarcerates is from, according to statistics by the Prison Policy Initiative.

“You have citizens from all over New Jersey, like from Essex County, that are put in counties like Cumberland County, which has three prisons,” Aaron Greene, associate counsel at the New Jersey Institute for Social Justice, told the Political Report. “It shows how the system is set up to take citizens out of their communities… and increase the political power of [other] communities. They are just bodies counted. Legislators don’t consider them citizens but they play a role in their political power.” He added, “Having people counted in the communities where they are from and where they will return, where their families are, is extremely important.”

Greene emphasized that the reform is a “first step,” though. “We also don’t forget that these citizens still don’t have the right to vote,” he said. “I don’t think anyone should be counted as just a body. They should be able to have a basic human right to participate in the civic parts of our society.”

Last month, New Jersey restored the voting rights of people who are on parole and on probation, a move that affects more than 80,000 people.

But New Jersey will continue to bar people from voting if they are incarcerated over a felony conviction. This means that its prison system’s record racial inequality will continue to resonate in its elections. African Americans make up a majority of the people incarcerated in New Jersey, and so of the people who will be disenfranchised going forward; only 13 percent of New Jersey’s population is Black. 

Another limitation of the new law is that it only applies to the process of redrawing maps for the state legislature. Prison gerrymandering will perdure for congressional redistricting, and for the drawing of most local districts like city council wards. Its effects are far less pronounced at the congressional level than the legislative one, since the prison population represents a far smaller share of a congressional district’s population. Still, most other states that have adopted legislation against prison gerrymandering addressed congressional redistricting as well. 

On Tuesday, Murphy also signed legislation that enables enabling all eligible voters to register to vote online.

The state can go further in easing if not automating the process by which people who interact with the criminal legal system register to vote. Ryan Haygood, president of the New Jersey Institute for Social Justice, told the Political Report in December that he would like to see the state “set up regulations that make probation and parole officers agencies that register folks. When they interact with those agencies, those agencies should register them: they should tell them they’re eligible to register and they should help them register.” He added, “We got a fair amount of work to make sure the state is doing its part to notify people and helping them register.” 

With its new law, New Jersey joins California, Delaware, Maryland, Nevada, New York, and Washington as the only states to have reformed prison gerrymandering. Nevada and Washington did so in the spring of 2019.

Preparing for 2020, lawmakers have filed new legislation against prison gerrymandering in Colorado and Virginia; bills were introduced but did not make it out of committee last year in at least Connecticut, Illinois, Oregon, and Rhode Island. All these states are governed by Democrats. (Other states run by Democrats, or where Democrats have veto-proof majorities, are Hawaii, Maine, Massachusetts, New Mexico and Vermont.) Some lawmakers who represent districts that contain prisons resist change, arguing that it would be unfair to their constituents. 

The clock is ticking if states are to act in time for the next round of redistricting. 

In its upcoming decennial census, the Census Bureau will count incarcerated people where they are imprisoned. Advocates had called for a change to this convention to bring a federal end to prison gerrymandering, but the agency rejected their demands. This left reform to states. New Jersey’s law instructs the Department of Corrections to create adjusted databases out of the census: Subtract incarcerated people from the population count of the place where they are detained and add them to the population count of the place they resided beforehand. (For people with out-of-state addresses, the New Jersey DOC will only complete the first step.)

“There is still plenty of time left for states to pass reforms,” Aleks Kajstura, the legal director of the Prison Policy Initiative, told the Political Report in July, pointing to late 2020 if not 2021 as a horizon. “That said, the sooner the better, particularly to allow for a smooth process for the transfer of data between the Department of Corrections and redistricting authorities.”

The post When New Jersey Next Redistricts, It Will Count Incarcerated People Where They Lived appeared first on Bolts.

State legislatures this year abolished the death penalty, legalized or decriminalized pot, expanded voting rights for people with felony convictions, restricted solitary confinement, and made it harder to prosecute minors as adults, among other initiatives.

But criminal justice reform remains an uneven patchwork. States that make bold moves on one issue can be harshly punitive on others. And while some set new milestones, elsewhere debates were meager—and in a few states driven by proposals to make laws tougher.

The Political Report tracked state-level reforms throughout 2019. Today I review the year that was—by theme and with seven maps. And yes, each state shows up.

Death penalty

While the Trump administration is attempting to restart executions, momentum built against the death penalty at the state level. Five states restricted, halted, or repealed the death penalty over a 10-month period that began in October 2018, when the Washington Supreme Court abolished the death penalty and converted the sentences of the people on its death row. 

Then, in March of this year, California Governor Gavin Newsom, a Democrat, imposed a moratorium on executions. Prosecutors can still seek death sentences, though, and people remain on death row. 

New Hampshire abolished the death penalty in May, becoming the 21st state to do so. This was a hard-won victory for death penalty abolitionists, who overcame a veto by Republican Governor Chris Sununu with no votes to spare in the Senate thanks to significant gains in the 2018 midterms. 

In June, the New Mexico Supreme Court converted the sentences of the last two people on the state’s death row. (New Mexico abolished the death penalty 10 years ago.)

Finally, in July, Oregon considerably narrowed the list of capital offenses. This is not retroactive, and leaves 30 people on death row; advocates have asked the governor for commutations.

Other states considered abolition, and Wyoming came the closest—just a few votes short in the state Senate. Also: In Ohio, a bill to ban the death penalty for people with mental illness stalled in the Senate after passing the House; and legislation to require unanimous juries in Missouri failed. Arkansas was a rare state to adopt a law conducive to the death penalty; it made it a felony punishable by up to six years in prison to “recklessly” identify the makers of drugs used for an execution. 

Parole and early release

The movement against the death penalty was accompanied by a nationwide push against death by incarceration, namely sentences that leave people virtually no chance of ever being released. 

In Massachusetts, Pennsylvania, and Vermont, reformers championed bills to abolish sentences of life without the possibility of parole; these bills would have guaranteed that everyone will be at least eligible for release after some lengthy period of incarceration. They did not pass, but they expanded debates around long sentences. Pennsylvania Governor Tom Wolf, a Democrat, commuted the life sentences of eight people this month, reviving a power that had ground to a halt.

Oregon abolished juvenile sentences of life without the possibility of parole, namely for acts that people committed as minors. This increased the number of states that have repealed those sentences to 22 (plus Washington D.C.). But similar bills failed elsewhere, from Democratic-run Rhode Island to Republican-run South Carolina. Oregon’s law also confronted other types of lengthy sentences, creating new opportunities for early release or a revised sentence for people convicted of offenses they committed as minors. This is not retroactive, though, and state advocates are asking lawmakers to revise that.

In Illinois, which eliminated its parole process in 1978 and left many to spend decades in prison with no opportunity for release, a new law changes that paradigm: It will make most people convicted of offenses they committed before the age of 21 eligible for parole. While the law is narrow, advocates told me in April that they see it as a jumping-off point.

Hawaii came close to amplifying these efforts. But Governor David Ige, a Democrat, vetoed a bill to let people suffering from a terminal or debilitating illness request a medical release. 

Youth justice

In 2019, a pair of laws cut the number of teenagers who will be tried as adults. The youth justice system, despite major problems of its own, has a comparatively rehabilitative outlook.

First: mandatory prosecutions. In Oregon, a wide-ranging law repealed all requirements that some minors be prosecuted as adults. Such mandates triggered long sentences for teenagers above 15. (Advocates clinched a supermajority they had long sought for this reform, in a dramatic sequence.) While Florida also ended mandatory adult prosecutions this year, Oregon’s law took another major step: Rather than empower district attorneys to solely decide when to try minors as adults, it forces them to first obtain a judge’s approval. 

Second: age eligibility. Michigan raised the age until which teenagers can be in the youth system by one year, to 18. Until now, the state treated every 17-year-old as an adult. Michigan prosecutors retain wide discretion to transfer them into adult court, however.

Michigan’s reform left only three states that have passed no law raising the age to 18 (Georgia, Texas, and Wisconsin); each state saw unsuccessful efforts to change that this year. But in some states, the debate has already moved ahead, and advocates are asking why being a day over 18 should cut off access to the youth justice system. In 2016, Vermont passed a law to steer some people up to age 21 to its juvenile system. This year, Massachusetts debated a similar bill with support from three of the state’s DAs; and Illinois passed an early-release law that atypically used 21, rather than 18, as its cutoff point.

Also this year: North Dakota raised to 10 from 7 the age at which children can be referred to the juvenile system, Maryland made it harder to detain children under the age of 12, New York made it easier for 16- and 17-year olds to stay in family court, and Washington restricted the detention of children over noncriminal acts like truancy. 

Drug policy

Marijuana legalization reached a new milestone in 2019: Illinois became the first state to create a regulated pot industry legislatively. Until now, this had only been done via popular initiatives.

Illinois also set up a process for people to get old marijuana convictions expunged, and adopted measures to help them enter the pot industry (though advocates warned these are insufficient); some of the revenue will be redistributed to areas with a high share of people with convictions. Here as elsewhere, advocates called such equity provisions essential to repairing some of the harm caused by prohibition, especially against African Americans.

Other states also reformed their marijuana laws to varying degrees. Hawaii, New Mexico, and New York decriminalized the possession of small amounts of marijuana. North Dakota reduced penalties, and removed jail time for first-time offenses. And Florida repealed its ban on smokable medical marijuana. But in Texas, and elsewhere, promising reform efforts stalled.

Colorado and Oklahoma led the way when it came to drug reforms beyond marijuana. 

Democratic-governed Colorado made possession of most drugs a misdemeanor rather than a felony, which will reduce penalties and sentences going forward. (Advocates also prioritized a “defelonization” bill in Ohio, though it has yet to move.) Oklahoma already adopted this “defelonization” change in a 2016 referendum; this year, lawmakers made it retroactive. This reform is significant: Republican-governed Oklahoma is only the second state to retroactively defelonize drug possession, after California. This will reduce the existing prison population. Hundreds of Oklahomans quickly became eligible for release.

Alaska was a rare state to take a more punitive turn, rolling back earlier reforms to once again make drug possession an arrestable offense. A bill passed by Virginia’s GOP-run legislature to make it easier to prosecute overdoses as homicides was vetoed by the state’s Democratic governor.

Also: In states like Maine, Idaho, and Nebraska that expanded their Medicaid programs, and where lower-income individuals will have stronger access to health insurance, proponents cast the expansion as a way to combat the opioid crisis and better connect people to treatment for substance use. Kansas’s new governor, Democrat Laura Kelly, called for Medicaid expansion to “ease the unsustainable burden on our … criminal justice system;” her push has yet to succeed.

Prison conditions

New Jersey adopted the country’s strictest law against solitary confinement, setting a limit of 20 consecutive days and 30 days over a 60-day period. But this remains beyond the United Nations’ “Nelson Mandela Rules,” which bar solitary for more than 15 consecutive days. 

Advocates pushed for similar legislation in New Mexico and New York. It was not taken up in New York. And in New Mexico, which has high rates of use of solitary confinement, legislative leaders considerably weakened the bill. The state did adopt important restrictions on the use of solitary against pregnant women, minors, and people with disabilities. Connecticut failed to set another major milestone: A bill that would have made it the first state with free phone calls from prisons derailed after a telecommunications corporation lobbied against it.

These events captured the difficulty of getting lawmakers to care about prison conditions. Some reforms that passed exemplify the low bar. “Things we didn’t know needed to be banned,” Vaidya Gullapalli wrote in The Daily Appeal when Oregon banned the use of attack dogs on people in prison.

Perhaps the lowest bar of all: Alabama prohibited its sheriffs from personally pocketing public money allocated to feeding people held in county jails. They could do so legally until now.

Prison gerrymandering 

Nevada and Washington adopted laws to end prison gerrymandering, which counts incarcerated people at their prison’s location rather than at their last residence for purposes of redistricting. The practice inflates the power of predominantly white and rural areas, where prisons are often located. 

Still, despite the backlash against skewed census counts and against gerrymandering, only six states have ended this practice. The clock is ticking, since states draw new maps in 2021.

Rights restoration and felony disenfranchisement

State politicians confronted felony disenfranchisement with new urgency in 2019, in the wake of Florida’s historic Amendment 4, which inspired advocates around the state this year, and of the 2018 prison strike, whose organizers demanded voting rights for people in prison. 

Florida and Kentucky, two very restrictive states that were each enforcing lifetime voting bans against hundreds of thousands of residents with felony convictions, promoted rights restoration once people complete a sentence. Florida implemented Amendment 4, restoring the voting rights of most people who finish a felony conviction. But state Republicans narrowed implementation in May by requiring payment of outstanding court debt, setting off legal and political battles.

In Kentucky, Democrat Andy Beshear won the governor’s race and then promptly restored the voting rights of people who complete sentences for felonies classified as nonviolent. Tens of thousands of people who have completed their sentences will remain disenfranchised; still, 4 percent of Kentucky’s population regained the right to vote with just one stroke of the pen. 

Beshear’s order leaves Iowa as the only state that enforces a lifetime voting ban over all felony convictions; legislation to reform that rule had momentum, but died in the Iowa Senate. Mississippi’s legislature similarly ignored a slate of bills that would have eased its harsh voting rules.

Three states went further to decouple voting and the criminal legal system: They enfranchised all voting-age citizens who are not incarcerated, including if they are on probation or on parole. 

Only one state had passed such a reform this past decade (Maryland). But Colorado, Nevada, and New Jersey all did so this year. This brought the number of states that allow all adult citizens who are not incarcerated to vote to 18. (That number includes Maine and Vermont, where people can also vote from prison; they also can in Puerto Rico.) Also: Louisiana implemented a 2018 law that lets some people vote while serving a sentence. The secretary of state did not play an active role informing newly-enfranchised people of their rights, leaving the burden of outreach on grassroots groups.

In some states, advocates focused on ending felony disenfranchisement. This would end the practice of stripping people with felony convictions of their right to vote, including if they are in prison. Lawmakers in eight states plus Washington D.C. filed legislation to that effect. In Hawaii and New Mexico, these bills advanced past a committee; that was already historic since reform on this issue has traditionally been more incremental. 

Also: Illinois adopted a law requiring prisons to better inform incarcerated people of their right to vote upon their release. On a parallel issue, California ended its ban on people with felony convictions serving on juries once they have completed their sentences.

Immigration and local law enforcement

In Illinois and New Jersey, Democrats prohibited county governments from entering what may be the most visible form of partnership with ICE: its 287(g) program, which authorizes local law enforcement to act as federal immigration agents within county jails. 

These two states join California as the only state to take such a step. This reform did not advance in other Democratic-governed states like Massachusetts and New York, both of which have state or local agencies with 287(g) contracts. In fact, Colorado Governor Jared Polis, a Democrat, threatened to veto such a ban, citing the value of local control.

Another major front regarding local law enforcement’s cooperation with ICE was the legality of “detainers,” which are ICE’s warrantless requests that jails keep detaining people beyond their scheduled release. Colorado Democrats adopted a law that forbids honoring detainers; in New Jersey, Democratic Attorney General Gurbir Grewal did the same, though he allowed for exceptions. Inversely, a law championed by Florida Republicans mandates that local law enforcement honor ICE requests; a full-throated effort by the North Carolina GOP to do the same failed because of Democratic Governor Roy Cooper’s veto.

Also: Colorado, New York, and Utah cut the maximum sentence for some or all misdemeanors by one day (from 365 to 364). This seemingly-small tweak will shield some people from deportation because noncitizens sentenced to at least one year of detention risk deportation. 

Past records and expungement

Beyond their immediate sentences or fines and fees, involvement with the legal system restricts people’s access to housing, transportation or employment. In response, some states expanded opportunities for people to expunge their criminal records. 

Take Delaware, which newly gave people the opportunity to expunge some convictions without first obtaining a pardon. Or West Virginia, which expanded eligibility to cover some felonies. 

But most people eligible for expungement do not seek one, as the process is costly and burdensome. As such, one of the year’s important trends is the spread of “Clean Slate” laws that automate parts of the expungement process, shifting the burden onto the government. 

After Pennsylvania became the first state to adopt such a law in 2018, Utah followed suit this year. California, besides starting to implement a law that automatically clears pot convictions, expanded automation this fall. (California’s Clean Slate law is not retroactive, unlike those of Pennsylvania and Utah, but its law is the only one to extend eligibility to some felony convictions.) Michigan and New Jersey have also begun the process of adopting Clean Slate laws.

Elsewhere, lawmakers lessened the tremendous impact that court debt has on the lives of people who cannot afford to pay it. Montana led the way, halting the suspension of driver’s licenses over a failure to pay fines and fees, a practice that can trigger mounting legal and economic hardships; Tennessee and Virginia passed more modest versions of this legislation. 

California advocates were unsuccessful in their push for a bill that outright banned many fees; Newsom vetoed another bill that would have required judges to determine people’s financial ability before imposing fines and fees. In Florida, Republicans tied state politics more tightly to financial obligations by subordinating rights restoration to repayment of fines and fees.

Finally, responding to studies showing that restricting the residency of people convicted of sexual offenses is isolating and fuels homelessness, the GOP-run Wisconsin legislature unanimously passed a bill repealing those restrictions. But Governor Tony Evers, a Democrat, vetoed the bill.

And there’s more

On pretrial procedures, New York adopted two major changes: It ended the use of cash bail for people charged with misdemeanors and some felonies; it also required that DAs share evidence like witness statements within 15 days of a defendant’s first court appearance. These reforms’ implementation is a major question heading into 2020 given the resistance of many prosecutors. Also, Colorado prohibited cash bail in low-level cases, and required bond hearings within 48 hours of arrest.

On policing, a California law restricted the circumstances in which police officers can use deadly force, though some advocates questioned the reform’s scope. California also adopted a three-year moratorium on the use of facial recognition technology in body cameras. And New Jersey mandated that all cases of people killed by police be investigated by the attorney general rather than prosecutors.

On sentencing, proponents of reduced sentences had high hopes in Arizona but reforms either died in the legislature or were vetoed by Republican Governor Doug Ducey. By contrast: North Dakota repealed some mandatory minimums, California ended an automatic enhancement statute, Washington slightly narrowed its three strike law, and Delaware Attorney General Kathleen Jennings, a Democrat, overhauled sentencing guidelines. In South Dakota, the legislature defeated a tough-on-crime push to increase prison admissions.

On probation, Minnesota and Pennsylvania considered proposals to cap the length of probation, whose burdens often trip people up on small violations. But Pennsylvania lawmakers gutted the bill so much its champions turned against it; the Minnesota proposal never moved forward in the legislature, but its sentencing commission is now considering adopting it administratively.

On exonerations, a new Indiana will provide exonerated individuals $50,000 of restitution for each year they were incarcerated—but only if they agree to forego all litigation against the state. 

On prosecutors, some lawmakers took steps for DAs to stop operating a black box. Connecticut became the first state to require that prosecutors collect an extensive collection of data about the decisions they are making. Louisiana reduced DAs’ power to jail victims of sexual offenses or domestic violence to compel them to testify. And California barred plea deals in which DAs ask defendants to forfeit hypothetical future rights, in response to a strategy that San Diego DA Summer Stephan was implementing. 

On asset forfeiture, finally, Arkansas adopted the unusual rule of requiring that individuals actually be convicted of a felony before having their assets seized. And while it looked like Hawaii would do the same amid significant problems in the state’s system, Ige vetoed the bill.

Preparations are already well underway for 2020 legislative sessions, whether in Virginia, where newly-empowered Democrats are unveiling their agenda, in Maryland, where change in legislative leadership may make criminal justice reform more viable going forward, or in New York.

The post From Marijuana to the Death Penalty, States Led the Way in 2019 appeared first on Bolts.

The undercount would be significant enough that states with larger immigrant populations could end up with fewer seats in the House of Representatives than they should have. This dynamic will also play out within each state when the time comes to redraw political districts. An undercount will increase the number of districts in areas that do not have a major immigrant population, while also funneling more state and federal funding toward those districts.

The stakes are high: If this change to the decennial census is allowed it will translate into the dilution of political representation for diverse, immigrant-rich population centers and their inhabitants. And making a citizen count available could enable conservative states to distribute political representation based not on the number of people, but on the number of citizens. This, too, would lead to a shift in political power within states, away from more diverse areas. 

The Supreme Court will decide whether to allow the change. In the meantime, though, the census already counts people in a way that dilutes the power of communities of color, and of urban areas, while inflating that of white and rural communities.

Despite longtime pleas from advocates, the Census Bureau will, for the 2020 census, continue to count people in prisons where they are incarcerated, and not at the home addresses where they lived before incarceration and where they will most likely return upon release. (The census adopted changes to treat some deployed military personnel and children in juvenile treatment facilities differently, and count them at their last home addresses.) Most states use this data to draw their districts, a practice known as prison gerrymandering. The result, given the concentration of prisons in rural districts, and the disproportionate imprisonment of people from urban areas and from communities of color, is “a systematic transfer of population and political clout from urban to rural areas,” writes the Prison Policy Initiative, as well as toward predominantly white ones. 

Prison gerrymandering is just one of a set of practices that leaves the communities most targeted by the policies of mass incarceration with the least power to effect change at the ballot box. Large swaths of people are arrested and forcibly moved from predominantly nonwhite areas to predominantly white ones whose population totals, political representation, and funding they inflate. Simultaneously, since people incarcerated over felony convictions are barred from voting in all but Maine and Vermont, these people are denied any voice in the communities gaining power from their presence. They are “ghost constituents.” This policy “deflates the weight of votes in areas targeted for criminal justice enforcement … exacerbating the cycle of democratic exclusion,” wrote Julie Ebenstein, an attorney with the ACLU’s Voting Rights Project, in a 2018 law review article. 

A new study of Pennsylvania shows the extent to which prison gerrymandering dilutes the political power of non-white residents and urban communities. Brianna Remster and Rory Kramer of Villanova University looked at every Pennsylvania district and examined the effect of counting people in their home districts rather than where they were incarcerated. What they found was that for at least eight districts, the population shift would be large enough that the districts would violate the principle that districts must have equal populations within a reasonable deviation. Four would have too many people and four too few. Three of the four districts that would have far too many constituents are in Philadelphia where “over 100,000 Black residents…do not experience representational equality as defined by the Supreme Court.”

“The incarcerated are not only missing from their communities, they are also benefiting other communities,” write Remster and Kramer. Specifically, they conclude that when it comes to political representation, “Black and Latino voters are being diluted in comparison to White voters because Blacks and Latinos are less likely to live in districts in which prisoners inflate the number of non-voting residents compared to Whites.”

Representation is similarly skewed in other states. The NAACP noted in a lawsuit that “for every 85 residents in District 59,” a largely white area of Connecticut that includes three prisons, “there are over 100 residents in District 97,” which is in New Haven, a majority-nonwhite city. In New York, as documented in a Demos report, there were seven Senate districts after the 2000 redistricting that met the minimum population requirement only if you counted the people incarcerated there; all seven were rural districts represented by Republicans. In Texas, there are several rural counties where approximately one-fifth of the population is incarcerated, lending power to these areas at the expense of urban centers like Houston; the New York Times reported in 2011 that Harris County would be entitled to an additional legislative district if Houstonians incarcerated around the state were to be counted there.  

“We’re talking resources away from economically disempowered communities where people used to live,” state Senator Will Haskell, a Connecticut Democrat who this year introduced legislation to allow incarcerated people to vote, said in a phone interview.

Although the most comprehensive solution to prison gerrymandering must come from the federal Census Bureau, states have begun to take action.

In Washington State, lawmakers adopted legislation last month to end prison gerrymandering. If Governor Jay Inslee signs it into law, it will require the state to count incarcerated people at their last known address, rather than where their prison is located, for purposes of redistricting. 

Washington would be the fifth state to adopt such a reform. Maryland and New York already modified how they count incarcerated people at the beginning of this decade, and California and Delaware are poised to follow during the round of redistricting that will follow the 2020 census. In addition, in Maine and Vermont, people who are incarcerated can vote at the last address at which they were registered prior to incarceration. 

Although the Census Bureau does not collect prisoners’ home addresses, states identify the number of people whom the census has counted as residing at the prison. Then they obtain from agencies like the Department of Corrections information about the last known addresses of people who were incarcerated at the time of the bureau’s count, and they relocate these people to that last address before conducting redistricting. These states differ on how to deal with the fact that the information provided by the Census Bureau is currently incomplete on this matter; they also differ on whether they use this method for both legislative and congressional redistricting.

Other states are debating ending prison gerrymandering, including Connecticut, New Jersey, and Oregon. In New Jersey, Republican Governor Chris Christie vetoed such legislation in 2017 but Democrats are pushing it again now that he is out of office.

One obstacle to ending prison gerrymandering is that lawmakers whose districts contain prisons often defend the increased representation and funding it gives to the areas they represent. Connecticut Representative Liz Linehan, a Democrat whose Cheshire-based district includes a state prison, said this year that she opposed reform because it “would have a significant negative impact on Cheshire’s state aid and operating budget.” Cheshire is a predominantly white town; 70 percent of the people incarcerated in Connecticut are Black or Latinx, according to the Prison Policy Initiative, and many resided in the diverse cities of Bridgeport, Hartford, and New Haven. Similarly, New York Republicans whose districts benefited from prison gerrymandering sued against the state law to reform that practice in 2011. (Courts upheld the law.)

The questions about who is counted, and where, are deeply political. How we count people has been weaponized to change the racial geography of political power in at least two ways. The citizenship question will undercount people who live among their family and communities, while prison gerrymandering fully counts disenfranchised individuals in the places to which they have been forcibly transferred, denying both them and their pre-incarceration neighborhoods meaningful political representation.

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