Tuesday, June 15, 2021

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IV. Impediments to Reform

The biggest impediments to prison-based gerrymandering reform are policy inertia and basic misunderstandings about the mechanics of the criminal justice system and how federal and state funding formulas operate.

In a nutshell, the Census Bureau counts people in prison as residents of the prison location because that is where they have always been counted. Thankfully, Census Bureau policies are not fixed in stone, and as the country, its population, and its needs have evolved, so too has Census Bureau methodology. The problem of the Census Bureau's prison miscount and the prison-based gerrymandering that results is a problem new to the era of mass incarceration, and the Bureau's methodology needs to catch up with modern America in this regard.

Former Census Bureau Director Kenneth Prewitt neatly summarized the problem with the outdated methodology: Current census residency rules ignore the reality of prison life. Incarcerated people have virtually no contact with the community surrounding the prison. Upon release the vast majority return to the community in which they lived prior to incarceration.

The prison reality that Director Prewitt spoke of is the fact that, while the prison buildings themselves may exude permanence, the people inside are in fact quite transient. Indeed, in New York state, for example, for those incarcerated on January 1, 2008, the median length of stay for people at their current prison was only 7.1 months.

In no practical sense are people in prison residents of the prison location, and the one common context where states have contemplated the question--voting--they have concluded that a prison cell is not a legal residence. Most states have explicit constitutional provisions or statutes that declare that a prison cell is not a residence. As discussed above, people in prison are generally barred from voting, and in the rare cases where people in prison can vote, they must always vote absentee at home, not in the district in which the prison is contained.

As mentioned, another impediment to reform is often an unsupported fear of negative changes to federal or state funding. Our research has found that both sides of the debate often rely on an oversimplification of how Census data is used to distribute funds and therefore overstate the impact of prison counts on funding formulas. In general, prison populations have very little impact on the distribution of federal and state funds, and the state and municipal solutions discussed in this article would have no impact whatsoever because there are no formulas tied to redistricting data.

The confusion about funding arises in part because the Census Bureau encourages participation in the Census by appealing to the important use of Census data in funding formulas. This leads to a misunderstanding about how the population data is actually used. Most large federal and state funding formulas, particularly those targeted to individual municipalities or school districts, do not use total population for their population component. Instead, they use more targeted factors, like people in poverty (which does not include people in prison or other people not in households), the number of school-age children, or non-Census data like the number of children enrolled in school. As a result, the impact of prison populations on funding formulas tends to be quite small.

Furthermore, each funding formula is a complicated effort to match the program's resources with the need being addressed. Each formula has its own specific data sources and methodology, none of which rely on state or local redistricting data. Thus, any changes to the redistricting data, be it for state redistricting or municipal redistricting, will have no effect whatsoever.

This logical conclusion is confirmed by the experience of the more than 100 rural counties and cities that removed the prison populations when redistricting after the 2000 Census to no ill financial effect.

Not only is there nothing to lose in ending prison-based gerrymandering, but everyone who does not live immediately adjacent to the state's largest prison complex benefits in at least one way if the practice is ended. At the state level, everyone living outside the state legislative district with the largest prison benefits; and the majority of the people living within that state district benefit at the local level from fairer county and municipal redistricting. The successful reform efforts to date have all been structured to maintain a broad coalition of all the interest groups that would benefit from reform.

In New York, where a bill to end prison-based gerrymandering ultimately passed on a narrow partisan vote, a Quinnipiac University poll shows it was supported by the majority of the state, urban and rural, Democrat and Republican, and the bill received editorial support from urban and rural upstate papers. Once the laws passed, rural supporters fought to keep them in place, resisting pushback from New York legislators responsible for drawing the new district lines. When a lawsuit was filed in New York challenging the new law, residents from every area of the state intervened to defend the law.

In Delaware, a bipartisan reform bill passed unanimously in the House. In Maryland, too, the legislation passed with bipartisan, urban and rural support. One White Republican state senator spoke from the floor about why he was voting for the bill, and both lead sponsors had massive prisons in their districts. As Delegate Joseline Peña-Melnyk explained, It doesn't matter, . . . . To me, it is just a fair way to count. Senator Catherine Pugh agreed, It was the right thing to do.

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