Wednesday, February 17, 2010

Where to Count Prisoners

By Mike Dorf

With the decennial census now under way, a familiar practice has again (and rightly) come under fire: The census counts prisoners as residing wherever the prison in which they are incarcerated happens to be, rather than in the communities from which they originate. However, in nearly all states, prisoners aren't allowed to vote. As a result, the count is depressed for disproportionately poor and minority communities from which prisoners disproportionately come, while the disproportionately non-minority, disproportionately rural communities in which prisons are located get a population bonus. Here I'll try to clear up a little bit of the confusion in the public discussion of this phenomenon.

In 2006, Congress asked the Census Bureau to explore the feasibility of counting prisoners at their prior homes rather than in prison. The Census Bureau produced a document raising a host of objections. The biggest problem would be the need to meet with and interview individual prisoners but also, the Census Bureau would have no uniform way of verifying the home addresses or even of defining home address.

With due respect, that was a misleading answer because the census data serve multiple functions. At the federal constitutional level, they are used to decide how many seats each state gets in the House (and thus also how many Electors in the Electoral College). Congress has interpreted the "actual Enumeration" language of Article I, Section 2 to forbid statistical sampling with respect to this core constitutional function. However, the same statute empowers the Census Bureau to use sampling for other purposes. Accordingly, the practical difficulties of conducting a non-sampling enumeration of prisoners should present no obstacle to the Census Bureau's providing estimates of local populations once prisoners are allocated to their prior residences.

That's significant because the numbers used for inter-state allocations of House seats need not be used--or can be supplemented by other data--in making allocations of benefits and, the focus of the current discussion, representatives within states. Here the relevant limits are the Voting Rights Act and equal protection limits embodied by the one-person-one-vote apportionment rule. To my knowledge (and I admit that I haven't researched this piece thoroughly), neither Congress nor the Supreme Court has spoken to the question of whether sampling-based data can be (or must be) used for these other voting-related purposes.

If I'm right about that, then a state could choose to allocate prisoners to their homes for purposes of allocating representatives among districts--so long as it had a reasonable basis for doing so, and sampled data would be such a basis. (According to a 2001 Harvard Law Review Student Note, a few states forbid the use of sampled data for internal purposes.) States that wanted to do so could probably generate the necessary data on their own, but they would do a lot better if the Census Bureau helped them.


  1. I'd like to suggest an intermediate "imperfect but better" measure that would not require any intrusion into the prisons whatsoever: Treat prisoners as residing, for census purposes, at the address of the courthouse in which they were convicted. This is particularly appropriate in federal matters, where many of the prisoners are housed in different states than those in which they were converted. For administrative purposes, it has the advantage of an objectively verifiable, documented, public record data source.

    Yes, it's imperfect -- it won't deal well with, for example, a prisoner who crossed a jurisdictional line to commit a crime against a vastly richer victim -- but it sure beats relying upon prison addresses, and has the significant administrative advantage of not requiring anything other than a records check. That is, it will actually be done, rather than pencilwhipped...

  2. Perhaps what I am about to say simply reveals a great deal of ignorance, in which case please correct me.

    Why is it appropriate to count prisoners at all in decisions regarding the allocation of representatives at any level (Federal or State)? Prisoners have, by definition, violated rules society considers serious enough to justify their removal from society. By doing so, they have broken with the social compact. Counting them is fine, of course. But why should their numbers be added to the numbers of citizens who are not in jail when it comes to decisions regarding the allocation of representatives?

    Matters may be different in the case of the allocation of benefits. Here we may reasonably suppose that the removal of potential breadwinners from society will likely have a serious impact on the innocent citizens (particularly their families) in the communities they leave behind. This may be an argument, at least, for counting a prisoner as residing in the home where her or his closest family member resides (when married, where the spouse resides; when unmarried, where parent resides). I take it that this information is in some record or other, and could be collected efficiently.

  3. I agree that the Census Bureau's 2006 report was a bit of a dodge. In fact, I was proud to be co-author of a report that anticipated and responded to their report, several weeks before their report to Congress was completed.

    Unfortunately, it's a little late to change where people in prison are counted for 2010 at the federal level. Some states are considering bills that would count prisoners at home -- or just not count them at all -- for state/local redistricting purposes, and the Census Bureau just agreed to change how the data is published in order to give states and counties some more options at redistricting time.

    But hopefully the Bureau will address the question of where to count people in prison during the evaluation of the 2010 Census so that this census can be the last one to count 2 million people in the wrong place.

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