Importing Constituents:
Prisoners and Political Clout in New York

A Prison Policy Initiative Report
by Peter Wagner
April 22, 2002
Updated May 20, 2002 to reflect April 22, 2002 amendments to the Senate & Assembly districts

I. Introduction

As of Census 2000, New York incarcerated 71,466 prisoners. Denied the vote by state law, these New York residents are counted as residents of the rural communities that host their prisons. The numerical equality of New York's proposed Assembly and Senate districts is based on a phantom population and is anything but equal. By using U.S. Census numbers in its redistricting process, the Legislature has counted urban prisoners incarcerated in rural prisons as rural residents. Common sense and the New York State Constitution tell us that a prisoner does not live in the prison. His or her residence is the home (s)he came from and will return to.

As "unwilling sojourners"[1], prisoners should be counted where their interests lie: at home. While prisoners may not vote in New York, they are entitled to political representation just like children and non-citizens. In a representative democracy, elected representatives represent people, not cities, farms, prisons or other businesses. In order for one person's vote to be equal to another's, the U.S. Supreme Court requires legislative districts to be of equal size by population.

New York State has experienced tremendous growth in the size of its prison population since 1980. Twenty years ago, New York incarcerated 123 out of every 100,000 citizens. Now the State incarcerates at more than 3 times that rate.[2] While 66% of New York State's prisoners are from New York City[3], all new prisons built since 1982 have been upstate.[4]

The district lines being proposed now will be law for the next decade. A fair and accurate count is essential for all of the people of New York to receive a legislature that represents their interests fairly and democratically.

In the words of a U.S. Department of Agriculture demographer: "A rural prison is a classic 'export' industry, providing a service for the outside community. Unlike some other rural services, such as recreation, the employment is year round." Although rural counties contain only 20% of the national population, they have snapped up 60% of new prison construction. Like export processing zones in Third World countries, even the raw material is imported for final manufacture. In New York, for example, only 24% of prisoners are from upstate, but 91% of prisoners are incarcerated there. (See Figure 1. New York State Population, Prisoner Origin and Prisoner Locations.)

42% of NY is from NYC, but 65% of the prisoners are from NYC. 91% of prisoners are incarcerated upstate

Figure 1. New York State Population, Prisoner Origin and Prisoner Locations

The most troubling aspect of miscounting prisoners in this fashion is the potential to change the balance of political power between communities who stand on opposite ends of state crime control policy. Taking electoral clout from urban communities which are the most negatively affected by aggressive incarceration policy, and giving that clout to rural communities that benefit from prison jobs has the potential of launching a cycle of prison growth without a democratic restraint.

II. The Census, reapportionment and redistricting

The U.S. Constitution requires the Census to count residents for the purposes of dividing congressional representation among the states. This is where the Census' constitutional mandate ends, although the data is used by everyone from marketers to other parts of the federal government for distribution of federal funds. At issue here is the use by individual states of the Census data to draw Congressional and state legislative district lines. By state constitution and U.S. Supreme Court precedent, all states are required to redraw state legislative districts every 10 years to keep the districts of equal population size and thereby ensure that each citizen's vote is of equal weight.

The Census' methodology in counting prisoners as residents of their prison may make sense for the purpose of the Census, but not for states that use the data in redistricting. Most residents self-report their residence, but where there could be a doubt about which residence to use, such as with military personnel, college students or prisoners, the Census issues rules on how "usual residence" is interpreted. Essentially, what the Census does is to count everyone -- except people traveling -- where they slept on Census Day April 1. To ensure an accurate count, the Census needs to count people who do not fill out forms. Knowing where the special populations are and how they should be counted gives the Census a low cost, highly accurate way to count populations between states. To fulfill that national aim, the Census counts prisoners where they are incarcerated. To the extent that prisoners are incarcerated in their home state, it does not matter -- for determining how New York's population compares to California's -- whether a New York City prisoner is counted in the Bronx or at Attica. [5] But for New York to apportion political power between regions in the state, a new methodology is required that takes into account the correct residence of each person in the State.

While federal funds also flow from the Census count, the constitutional requirement of the U.S. Census is only to count the population of each state. The Courts have upheld this narrow mandate for the Census.[6] Recognizing the shortcomings of Census methodology to the internal needs of the 50 states, the Supreme Court has held that the states are not required to use the Census data for their apportionment.[7] The New York Constitution requires that the state use the Census data for internal apportionment only "in so far as such census and the tabulation thereof purport to give the information necessary therefore."[8] The data produced by the Census Bureau is not applicable to New York because it does not accurately reflect where in New York its citizens live.

Unlike the other populations in other Census controversies (college students and military personnel) prisoners are not considered a part of the local community. After release, the incarcerating community no doubt wishes that ex-prisoners leave on the first bus out of town.

This "out of sight, out of mind" approach to prisoners explains how the Census Bureau made so many mistakes around the country allocating prisons to the wrong town. The Census has a long preparation period building up to the actual count, and prepares maps for local community leaders to check before the actual count.[9] Apparently, many local leaders failed to recognize the misplaced prisons because they did not think of the prisons as a part of the community in the way they would a housing project or an assisted living facility.

If local rural leaders are not considering the prisoners as residents, just where are prisoners actually from?

III. Residence:

Where your residence is matters, as it determines what rights and responsibilities you have for things like voting, driving, access to the courts, or even how much you pay for a college tuition. But where do prisoners reside? Two areas where residence and prison have in fact been developed by the Courts are: voting in New York; and the right to sue in federal court as a resident of a particular state.

A. New York State Constitution and the residence of prisoners.

The New York State Constitution authorizes the legislature to disenfranchise prisoners[10], but it also offers explicit instructions that a prisoner's residence does not change by virtue of incarceration: "no person shall be deemed to have gained or lost a residence, by reason of his presence or absence ... while confined in any public prison."[11]

The only case dealing directly with this part of the New York Constitution was in 1894, when the State convicted an inmate for using the Tombs city prison as his residence when he registered to vote. Michael Cady was far more "residential" about his imprisonment than probably all of New York's prisoners are today, but even the voluntary prisoner Cady was not a resident of the Tombs.

Michael Cady would repeatedly confess to vagrancy and have himself committed for six months at a time to the Tombs. He had been doing so for about seven years, and intended to do so indefinitely. He was even allowed outside on occasion to do paid errands. As he was only committed to prison for vagrancy, Cady was allowed to vote, and he registered using his Tombs address.

Cady was prosecuted for illegal registration -- not for registering to vote -- but for registering to vote as a resident of the Tombs. The prosecution's theory was that under the Constitution and common sense, a prison can not be a residence, and Cady must have lived somewhere else before he went to prison. The New York Court of Appeals upheld the conviction, citing to the New York Constitution prohibition on gaining or losing a residence from imprisonment, and further defined residence:

The domicile or home requisite as a qualification for voting purposes means a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it.[12]

The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment, or even without any commitment, go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.[13]

Even though Cady was planning on remaining indefinitely at the Tombs, the Court said it was not a residence.

B. The residency requirement in federal court for prisoners

In order to protect out-of-state litigants from possible bias in state courts, lawsuits can be heard in federal court if the parties are from different states and the amount in question is above a certain amount. Whether the parties are in fact from different states is sometimes controversial and dependant upon the facts of where the parties are and whether they intend to remain there. For example, if a person spends six months a year in Arizona and six months year in California, which is their residence? As a person can only have one residence for legal purposes, their residence is the place where they choose to be and intend to remain. Temporary residents of a place who intend to return home are not deemed to have taken up a new residence.

While most prisoners are convicted of state crimes and housed within their state, a growing number of prisoners are convicted of federal offenses and may be incarcerated anywhere in the country. But is a prisoner incarcerated in another state now a resident of the new state? The 1973 case that first opened a very narrow exception to the issue provides an excellent explanation of the rationale for recognizing that incarceration does not change residence:

It makes eminent good sense to say as a matter of law that one who is in a place solely by virtue of superior force exerted by another should not be held to have abandoned his former domicile. The rule shields an unwilling sojourner from the loss of rights and privileges incident to his citizenship in a particular place, such as, for example, paying resident tuition at a local university, invoking the jurisdiction of the local divorce courts, or voting in local elections.[14]

New York may have a lot of prisoners, but unlike Michael Cady, very few if any choose to be in prison. They do not choose to be incarcerated hours away from their family, friends and communities. Given the opportunity upon release -- and almost all prisoners will eventually be released-- they will return to the area from which they came.

The U.S. Census does not bother to determine where a prisoner's residence actually is, but to fairly draw state legislative boundaries, the state legislature is required to determine the true residence of its citizens. If unsure where to look for a prisoner's residence, perhaps the legislature can take a hint from law enforcement. When a prisoner escapes, the first place the police check is with the prisoner's home and family.

IV. One person one vote requires equal populations of people counted in their actual communities.

[T]he fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State... [15]

Counting urban prisoners as rural residents turns the entire idea that districts should be of equal population on its head. In three proposed Senate districts, and 10 Assembly districts, at least 2% of the "constituents" are prisoners. The proposed district of Redistricting Taskforce member Chris Ortloff has the highest percentage of prisoners in the legislature: 6.99%. The population to be "represented" by Assemblyperson Ortloff includes 5,594 Black adults, 82.6% of who are barred by law from ever voting for or against him. By the time these prisoners complete their sentences and are again allowed to vote, they will be back home in a different district. The prisoners should never have been counted locally for the same reason vacationers are not counted locally: they are only there temporarily.

The basic principle of American representative democracy is that every vote must be of equal weight. The starting point for state legislative redistricting is the landmark 1963 Supreme Court case Reynolds v. Sims.[16] Reynolds struck down an apportionment scheme for the Alabama state legislature that was based on counties and not population. In 1960 Alabama, Lowndes County with 15,417 people had the same number of state senators as Jefferson County with 634,864 people. Believing the situation in Alabama to be illustrative of a large number of other states drawing legislative boundaries in such as way as to dilute the political power of citizens based on where they lived, the Supreme Court wrote a very broad opinion to guide the states in fairly apportioning the state legislatures.

If districts are of equal size, each citizen has equal access to a representative to advocate for her or his needs. When districts are of substantially different sizes, the weight of each vote starts to differ. In underpopulated districts, each vote is worth more, and in overpopulated districts, a vote is worth less. In 1960 Alabama, a Lowndes County senator had the same political power as one from Jefferson County, but the Lowndes County senator could devote her or himself to advancing the interests of only 15,417 people. As a result, a vote in Lowndes county was worth over 41 times a vote in Jefferson county. Reynolds v. Sims barred this practice and put it plainly: "[T]he weight of a citizen's vote cannot be made to depend on where he lives."[17]

Every urban prisoner counted as a rural resident decreases the number of "real" rural residents required for a rural district. As the number of real residents declines, the weight of a vote from a rural resident increases. This undemocratic effect is magnified by the fact that most "phantom" rural residents in a rural prison should have been counted in an urban area.

Based on Article 2 of the Constitution, congressional districts are required to be based on equal population "as nearly as is practicable."[18] The slightly less strict equal protection requirement of the 14th Amendment allowed the Supreme Court to recognize that state legislative districts were more numerous than congressional districts and where other state interests could be protected, slight variations in population should be allowed. Of most concern to the Court was allowing districts to deviate slightly in population if it would help the lines be drawn in a way that would preserve traditional political boundaries or "communities of interest". As long as population remained the basis of any state legislative plan: "a desire to preserve the integrity of political subdivisions may justify an apportionment plan which departs from numerical equality."[19]

All communities have a number of convicted people, but only a small number of communities host prisons. The majority of communities in New York State lose at least some population to prison, but New York City is especially hard hit with 44,326 city residents counted in upstate prisons, and only 586 prisoners incorrectly counted as New York City residents. While controversies may rage about the disproportionate undercount in various communities in New York State, it's undeniable that 43,740 verifiable New York City residents were counted as residents of other parts of the state. (See Figure 2. Prisoners and New York City.)

Figure 2. Prisoners and New York City
Total From NYC Not from NYC
Prisoners in prisons in NYC 3,058 2,472 586
Prisoners in prisons not in NYC 68,339 44,326 24,013
Benefit to NYC from prisons 586
Loss to NYC from prisons 44,326
Net loss to NYC from prisoner enumeration at place of confinement 43,740

These 43,740 New York City prisoners, along with all suburban, rural and upstate urban prisoners not incarcerated near their homes, are counted in the communities that contain the prison. These prisoners then swell the size of the rural prison communities at the expense of the communities from whence they came.

The 14th Amendment concept of equal protection gives all people the same access to government. The number of voters may vary from district to district, but the number of people in each district must be the same for each resident to have the same access to government. New Yorkers need to balance many competing needs and a limited budget. The only way that New York can fairly address its future is if each citizen is given the same power at the legislature to influence policy.

Counting urban prisoners as rural residents violates the very ideas of starting with population and deviating from perfect equality only to preserve traditional "communities of interest". Prisoners are external populations that are not "traditionally" rural in any sense of the word. Allowing communities to take in populations by force, just to benefit at the state legislature, violates any sense of equal protection or fundamental fairness. To paraphrase Chief Justice Warren: "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities" or prisons.[20]

V. Can the phantom prisoner population break the back of gerrymandering in New York?

For three decades, the Republican Party has controlled the State Senate and the Democrats the State Assembly, "in large part due to their respective control of redistricting in their chamber."[21] Typically each chamber draws districts as numerically small as possible in areas where it is likely to be elected, and districts as numerically large as possible in areas where it is unlikely to be elected.[22] Making districts smaller increases the weight of each vote, and allows more like-minded districts to be drawn than would otherwise be possible. This kind of vote manipulation through the drawing of district boundaries is referred to as gerrymandering.

It could be argued that 43,740 verifiable New York City residents counted elsewhere is a small deviation of no consequence to the drawing of district lines. But combined with the traditional gerrymandering in the New York Senate, miscounting prisoners has a large impact.

The proposed lines for the New York Senate contain a large number of overpopulated urban districts in Queens, while upstate districts are underpopulated. These traditional gerrymandering practices have put 15 districts right up against the limits of allowable deviation from population equality. Restoring prisoners to their rightful residences throws the Senate proposed districts over the edge of allowable deviation from equal population.

The Reynolds courts' failure to set a numerical limit on allowable variation from strict equality led to White v. Regester[23]. where the Supreme Court ruled that the State of Texas was not required to justify how it drew lines resulting in an average district deviation of less than 2% and a maximum deviation of 9.9%.

On its face, New York's redistricting plans appear to be within the limits of White v. Regester. The maximum deviation in the Assembly proposal is 9.43%, and the average deviation is 2.67%. The maximum deviation in the Senate proposal is 9.78%, and the average deviation is 2.22%. To the misfortune of New York City residents, it is the "too-small" rural Senate districts that have all the prisons, and the "too-large" urban districts that supply the prisoners that boost Upstate New York's clout. This Census quirk magnifies the loss to New York City from the traditional gerrymandering in the New York Senate.

After removing prisoners from the proposed senate districts, 7 districts are short more than 5% of the required average of 306,072. (See Figure 3. Selected underpopulated/overrepresented Senate districts with prisoners removed.)

Figure 3. Selected underpopulated/overrepresented Senate districts with prisoners removed.
Senate District Senator Type Reported Population Prisoners to remove Corrected Population Corrected Deviation
45 Ronald Stafford Rural 299,603 12,989 286,614 -6.36%
47 Raymond Meier Rural 291,303 3,563 287,740 -5.99%
48 James Wright Rural 290,925 5,291 285,634 -6.68%
49 Nancy L. Hoffman Rural 291,303 2,881 288,422 -5.77%
51 James Seward Rural 291,482 3,108 288,374 -5.78%
54 Michael Nozzolio Rural 291,303 3,551 287,752 -5.99%
59 Dale Volker Rural 294,256 8,951 285,305 -6.79%

By census counting methods, Senator Volker's district is already short 11,816 people, but reducing his proposed district by 8,951 prisoners to count only actual residents would leave his district 6.79% underpopulated. Volker can hardly say he represents the prisoners. In a recent article, Senate Volker admitted that he comes from a part of the state with "more cows than people" and then went on to say that forced to choose between constituents, he would choose the cows as "they would be more likely to vote for me."[24]

The most over-populated Senate districts are located in Queens, with each about 12,410 (4.05%) more people than the required average size. Even if no prisoners are from the borough of Queens, the maximum deviation between the true size of Senator Volker's district (-6.79%) and the Queens districts is 10.84%, more than the allowable vote dilution limits of White v. Regester.

If we assume that New York City's prisoners are evenly from each district in New York City, the true population of each New York City Senate District is 1,800 residents higher. To illustrate the effect such an average distribution of prisoners to Queens could have, see Figure 4. Of course, The Department of Correctional Services should have ready access to the exact home residence data.

Figure 4. Overpopulated/under represented proposed senate districts with estimate of prisoner count restoration.
Senate District Senator Type Reported Population NYC Prisoners to restore Prisoners to remove Corrected population Deviation Deviation Percentage
10 Ada Smith Urban-Queens 318,481 1,800 0 320,281 14,182 4.63%
11 Frank Padavan Urban-Queens 318,482 1,800 0 320,282 14,209 4.64%
12 George Onorato Urban-Queens 318,484 1,800 604 319,680 14,210 4.64%
13 Urban-Queens 318,484 1,800 0 320,284 13,608 4.45%
14 Malcolm Smith Urban-Queens 318,481 1,800 0 320,281 14,212 4.64%
15 Serphin Maltese Urban-Queens 318,484 1,800 0 320,284 14,209 4.64%
16 Daniel Hevesi & Toby Ann Stavisky Urban-Queens 318,483 1,800 0 320,283 14,212 4.64%

Many upstate senate districts are up against the opposite margin of underpopulation, although by varying amounts. Taken together, 5% per district can add up to a lot over a region. The proposed senate is already heavily weighted towards upstate Republicans, but correcting for misplaced prisoners makes the senate's bias even more extreme.

The fact that the Queens districts are all equally oversized, right on the maximum border of illegality, suggests that the deviations were not driven by a concern to protect political boundaries, but rather to weigh different communities differently. The spokesperson for Senator Dean Skelos, the head of the senate's redistricting task force, has defended the population deviations by telling the New York Times: "It's legal, what more do you want?"[25] Whether such a concerted effort to push the limits of White v. Regester has ever been tested in Court is unclear, but combined with the counting of urban prisoners as rural residents, the problem of unequal district sizes in the senate is even larger than it appears on first glance.

VI. Policy implications of subverting one person one vote via miscounting prisoners

In the last three decades of the millennium, New York's prison population grew 5.6 times larger. Reflecting the political shift to criminalize drugs that began in the state under Governor Rockefeller, the number of prisoners incarcerated for drug offenses grew by 20.5 times. New York is a majority white state (54%), but the overwhelming majority of prison growth (87.6%) since 1970 has been of minorities.[26]

By crediting rural prison towns with urban prisoners, the New York Legislature is helping to postpone, for at least another decade, a democratic debate over the best way address crime, drugs and unemployment. The majority of New York's prisoners are urban and non-white, but the majority of New York's 70 prisons are in predominately white rural areas. In essence, these rural whites will be able to "speak for" the incarcerated urban prisoners in ways counter to their interests.

Counting urban prisoners as rural residents creates the potential for a self-perpetuating cycle of prison expansion immune to democratic restraint. The very communities most supportive of and dependant on prisons find their political clout growing, and the communities most likely to support alternatives to incarceration find their citizens being shipped upstate while their political clout dwindles. Rural communities without prisons may also suffer, as the prison-effect in the legislature grows to overwhelm the supporters of agriculture with prison razor wire.

While the prison boom of the 1980s and 1990s has been a bi-partisan affair, some of its strongest proponents have been upstate Republican Senators Volker and Nozzolio, heads of the Committees on Codes and Crime, respectively. Prisons are big business in their districts, and from their powerful Committees they have been leading the fight against repeal of the Rockefeller Drug Laws that caused the prison boom in the first place.[27] The prisons in their two current districts account for more than 23% of the state's prisoners. The powerful Senate Finance Committee Chairperson Ronald Stafford has 13,223 prisoners in his current district. Would the Senate have the same policies if each district contained equal numbers of actual residents?

Graph

Figure 5. New York State Prison Population, total and drug offenses, since 1970.

Graph

Figure 6. New York Prisoners and State Population by race, 2000.

It should concern all New Yorkers that the state has chosen to build expensive prisons instead of funding cheap drug treatment.[28] It should be disturbing enough that rural New York's unemployment problem is being solved at the expense of urban residents. Seventy-four percent of New York State's prisoners are from the New York City and its suburbs; but despite clear evidence from before the prison boom began in the 1970s that frequent family contacts reduce recidivism, 87% of state prisoners are housed more than 2 hours from New York City.[29] Something is very wrong with New York State's love affair with prisons and the legislature's redistricting plan helps to prevent New Yorkers from taking democratic action against it.

For a long time, communities opposed prisons being built in their area. But a belief by local politicians and some residents that prisons bring jobs to a community has recently reversed the historical response to now be "Yes, in my backyard". But jobs are not the only benefits, as an imported phantom population has political benefits in the face of an actually declining rural population.

Some politicians are more aware of this effect than others, but all are impacted. Last year in Rhode Island where the state legislature was to shrink by 25%, State Representative Peter Palumbo was glad to have a prison in his district: "All these years the prison has caused me grief with my constituents. Now maybe it will help with redistricting."[30]

In an incumbent's ideal world, the district would be drawn around the incumbent's home and a huge prison, resulting in a guaranteed election because there would not be an opponent eligible to run. Every prisoner counted at the prison therefore increases not just the clout of the actual residents, but makes reelection more likely for the incumbent.

Somehow, the New York Legislature has funded prisons at a cost of over $2 billion a year[31] without ever answering the question of what they are getting for the citizens' tax dollars. The proposed districts resemble another historical legislative compromise to avoid a contentious issue: the 3/5ths clause.

At the Constitutional Convention in 1787, the question of how to apportion political power between the North and the South -- and the underlying question of slavery -- threatened to split the young nation. The Southern States feared the more populous anti-slavery North would overwhelm them on issues of slavery and economic policy. While Congress was granted a broad power to regulate commerce, the new Constitution banned considering a prohibition on the slave trade until at least 1808.[32] To protect the South from fears of being out-voted on other issues of economic policy, the North let the South count each of their disenfranchised slaves as 3/5ths of a white person, giving the South parity with the North in the population-based House of Representatives and in the Electoral College. Without this arrangement, for 32 of the first 36 years of the Constitution, the President would not have been slaveholder from Virginia.[33] And likewise, without a Congress stacked in favor of the South, the country would have come to a democratic solution to its slavery problem long before the Civil War exploded.[34]

Rural prison towns do not share a "community of interest" with urban prisoners or their loved ones. In fact, they are often in contradiction. Senator Dale Volker told Newhouse News Service he does get letters from prisoners with a variety of complaints, but that his real attention is directed toward corrections workers, with whom he has forged strong relationships.[35]

It is a dysfunctional democracy that transfers populations within a state to supplement the political power of the most fervent supporters of continued transfer. Allowing representatives to represent people, not farms, or cities or prisons is how New York can best address its challenges in the new century.

VII. Recommendations

A. Recommendations for correcting the proposed districts

When the Census Bureau placed a number of prisons throughout New York and the rest of the country in the wrong town or even county, there was an outcry for a correction. But the problem requiring a fix was not the placement of the prisons, the real problem was the placement of the prisoners.

Fixing this problem does not require the assistance of the Census Bureau or a complete, emergency New York State Census. Like the correction of other Census Bureau mistakes, the incorrect rural enumeration of prisoners can be corrected in the redistricting data used by the State. Conducting a special New York Census would be cost-prohibitive and would interfere with the elections scheduled for November 2002. Instead, New York can modify the redistricting data by moving prisoners from the prison address to the home address on file with the Department of Correctional Services for prisoners incarcerated on April 1, 2000. This corrected dataset can be used to draw new district maps.

There are potential inaccuracies in address corrections of this type, but it would be a substantial improvement over the current practice. This idea of using "home of record" to address special Census populations has precedent in federal practice. When at the last minute Congress required the 1990 Census to count military personnel stationed abroad as state residents, they used the Department of Defense's home of record information despite the fact that this information tended to be outdated and biased towards the income tax laws of New Hampshire.[36]

Compared to the current situation where all prisoners were counted in the wrong place, using home of record information -- that may be outdated for only a few prisoners -- would be a vast improvement and an acceptable short-term remedy.

B. Recommendations for future enumerations

The most equitable solution allows prisoners to declare their own legal address, as there will be situations where a prisoner intends to return somewhere other than his or her previous home.

Future censuses should take into account special populations that are in a location involuntarily, and allow prisoners to state their own residence address. As the Census currently goes significantly beyond its Constitutional mandate and assists the states in using its data for redistricting, New York would be well within its rights to lobby the census for reforms that would benefit on a state level. If the Census refuses, the state could easily adopt special procedures to modify the data for state purposes to accurately reflect an accurate address for prisoners. The New York State Constitution foresees the possibility that the Census could be inadequate for state redistricting purposes in that it requires use of Census data only "in so far as such census and the tabulation thereof purport to give the information necessary therefore."[37]

If the Legislature fears that prisoners would abuse their ability to declare an address, they can follow the rule in Stifel v. Hopkins[38] and keep a prisoner's legal residence at his or her last address, unless the prisoner can show why it is no longer valid and a new one exists to replace it. These cases would be few and far between, but even a prohibition on prisoners updating their last known address would lead to a far more accurate and representative Legislature than the current practice of counting tens of thousands of prisoners were they do not actually reside.

VIII. Conclusion

The Supreme Court has upheld the right of states' to ban prisoners from voting, but it has never allowed one community to appropriate the political power of another. While the New York State Constitution authorizes felon disenfranchisement[39], it also explicitly instructs as to where prisoners should be counted: "For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence ... while confined in any public prison."[40]

Rural unemployment, urban crime, budgetary constraints and drug addition are serious issues. Counting prisoners at their homes and not in their cells is the only way to ensure that issues of crime policy and rural unemployment are resolved fairly by advocates from the communities actually affected.

IX. Methodology

The New York Department of Correctional Services publishes detailed statistics about the prison population in each prison in "The Hub System: Profile of Inmates Undercustody on January 1, 2000". This demographic data was then compared and/or subtracted with the relevant county, or legislative district where each prison was located. This study looked only at state prisoners, as county prisoners as less likely to have been convicted of a disenfranchising felony, and less likely to be incarcerated far from home. This study does not look at the four federal prisons in New York State, which likely contain a large number of residents from outside the State of New York.

The descriptions of the 2000 counties and the current districts were drawn from the Census 2000 Redistricting Data (Public law 94-171) Summary File. Descriptions of the proposed districts from drawn from the New York State Legislative Task Force on Demographic Research and Reapportionment website <http://latfor.state.ny.us/> as of April 28, 2002.

Each prison was mapped from the Department of Correctional Services facility list and driving directions, and where that was unsuccessful, other methods were used to refine the locations of prisons with ambiguous locations. Prisons were placed within the current districts with the help of the Senate and Assembly websites and the Senate information office. The offices of individual legislators clarified the location of prisons that were on a border between two current districts. The prison populations were located within each proposed district with the aid of online mapping software. Several difficult to locate prisons were mapped with the assistance of the assessor's offices in several upstate towns.

The Census Bureau counts Hispanics/Latinos as an ethnicity that may be of any race, while the New York State Department of Correctional Services counts Hispanic as a race. The New York State Legislature in essence counts Hispanics as a race, because it's published data from the Census Bureau includes each Non-Hispanic racial group and then Hispanics each as separate categories. This report adopts the procedures of the state legislature, although it uses the language in the Department of Correctional Services reports in referring to non-Hispanic Whites as Whites and non-Hispanic Blacks as Blacks. Figure 13 in the appendix matches some of this data with the Census's more common numbers as presented in the shapefiles distributed by Empire State Development.

New York Prison population since 1970 constructed from Department of Correctional Services Reports for 1970, 1985 and 2000.

New York Prisoners and State Population by Race built from "The Hub System: Profile of Inmates Undercustody on January 1, 2000" and the Census Bureau American Factfinder.

Prisoners from New York City was calculated from "The Hub System: Profile of Inmates Undercustody on January 1, 2000" as the DOCS publishes how many prisoners each prison are from each region. While this accurately states the loss to New York City itself by 43,740 residents, it understates the numeric gain to prison communities. Suburban New York City is home for 10.2% of State prisoners, urban upstate areas is the residence for 13.9%, and 10.3% of prisoners come from all of "upstate other". Unfortunately, the published Department of Correctional Services data for race and region can not be combined for a more detailed analysis, nor can the data be readily used to analysis the loss to rural communities that do not contain prisons.

A. Clarification on data columns in the appendix

Counties were labeled as Urban New York City, Suburban New York City, Upstate Urban or Rural as listed in Table 12.1 of Characteristics of Inmates Under Custody, December 31, 1985-1992. Legislative districts were labeled to approximate the labeling distinctions used by the Department of Correctional Services.

% of Black adults disenfranchised. This column takes the assumption that prisoners actually reside and are represented in the prisons, and calculates what percentage of the Black adult population is in prison and unable to vote. The base population is the Black adult population, and assumes that all are citizens and none are disenfranchised parolees.

Proposed districts are labeled by the names of the Senator or Assemblyperson who currently resides in the district, as identified by the Task Force on Demographic Research and Reapportionment website.

Deviation percentage is the percentage that a districts population is different from the required average for Senate or Assembly districts. Negative numbers are districts that are too small, positive numbers are districts that are too large.

Deviation not counting prisoners is the population of the district with prisoners removed, as a percentage of the required average for Senate or Assembly districts. Negative numbers are districts that are too small, positive numbers are districts that are too large.

B. Clarification on data columns in the text

Corrected population is the reported population minus the number of prisoners in the district plus any prisoners that should be added as actual residents of the district.

Corrected deviation is the percentage that a districts population is different from the required average for Senate or Assembly districts. Negative numbers are districts that are too small, positive numbers are districts that are too large.

NYC prisoners to restore is the average number of state prisoners from New York City per district.

X. Acknowledgements

Criminal justice researcher and filmmaker Tracy Huling provided incredible inspiration and background for this project.

Professor James Gardner gave wonderful feedback and advice on a very early version of this report.

Tammy Ciak, Ann Fisher, Sarah Kowalski, and Lanell James were extremely helpful with research.

While this report could not have been done without the above people, responsibility for the conclusions and any errors is attributable only to Peter Wagner and the Prison Policy Initiative.

About the Prison Policy Initiative

The Prison Policy Initiative is a Springfield, Massachusetts based organization that conducts research and policy advocacy around incarceration policy. Our work starts with the idea that the racial, gender and economic disparities between the prison population and the larger society represent the grounds for a democratic catastrophe. Our conception of prison reform is based not merely in opposing a rising rate of incarceration, but in the need to evolve to a better way of addressing social problems than warehousing our citizens in cages.

About the author

Peter Wagner is Assistant Director of the Prison Policy Initiative and a third-year law student at the Western New England College School of Law. His email address is .

[1] Stifel v. Hopkins 477 F.2d 1116, 1121 (1973).

[3] Department of Correctional Services, State of New York, Characteristics of New Commitments 1999 74 (2000) Department of Correctional Services, State of New York, The Hub System: Profile of Inmates Undercustody on January 1, 2000 p. 8 (2000)

[4] City Project, Following the Dollars: Where New York State Spends Its Prison Moneys, March 2000, p. 2.

[5] The practice of exporting prisoners from one state to another and paying for their confinement on a per-diem basis is relatively new on a large scale. In 1999, Wisconsin Congressional Representative. Mark Green introduced a bill to require the Census to count prisoners housed out of state to be counted in the state that paid for the prisoners. The bill was unsuccessful in part due to the last minute nature of the change. The only previous precedent on point was that of the District of Columbia which housed prisoners in a D.C. owned and operated facility in Virginia. In 1992, D.C. sued over the loss in federal funds from counting the prisoners as Virginia residents. The Court ruled the use of federal funds was not within the Census mandate and rejected the claim under a mere rationality standard. D.C. v. Commerce 789 F. Supp. 1179 (1992). Had the case been about a fundamental right such as voting power, the court would likely have gone the other way.

[6] D.C. v. Commerce 789 F. Supp. 1179 (1992); Bethel Park v. Stans 449 F2d 575 (1971).

[7] Bethel Park at 583.

[8] New York State Const. Article 3, Section 4.

[9] See for example, "New York State Census 2000 Plan" <http://www.empire.state.ny.us/nysdc/ftp/Final%20Census%202000%20Plan.pdf> viewed April 7, 2002

[10] New York State Const. Article 2, Section 3.

[11] New York State Const. Article 2, Section 4.

[12] New York v. Cady 143 NY 100, 106.

[13] New York v. Cady 143 NY 100, 106.

[14] Stifel v. Hopkins 477 F.2d 1116, 1121 (1973)

[15] Reynolds v. Sims 377 US 533 (1964) at 560-561.

[16] Reynolds at 567.

[17] Reynolds at 567

[18] Wesberry v. Sanders 376 U.S. 1 (1964) at 8.

[19] Reynolds at 578

[20] Reynolds at 562. The Chief Justice was about to say "or economic interests."

[21] Public Interest Guide to Redistricting <http://www.fairvote.org/redistricting/reports/remanual/ny.htm> viewed April 21, 2002.

[22] See generally, James McKinley "District lines do not please governor", New York Times, April 11, 2002, p. B4.

[23] White v. Regester 412 U.S. 755 (1973).

[24] Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict Newhouse News Service. viewed April 21, 2002.

[25] Shaila K. Dewan, In Pataki's Courtship, Minority Groups See Chance for Veto of Redistricting Plan, New York Times, March 31, 2002, p. 32.

[26] New York Population from Census Bureau American Factfinder; prison population from the New York Department of Correctional Services Annual Reports for 1970 and 2000.

[27] "Full-Employment Prisons" New York Times, August 23, 2001, p. A18.

[28] Daniel Feldman, "20 Years of Prison Expansion: A Failing National Strategy" 53 Public Administration Review 561 (1993).

[29] Department of Correctional Services, State of New York, The Hub System: Profile of Inmates Undercustody on January 1, 2000. According to maps.yahoo.com, only the Queensboro Hub prisons, and the Taconic, Bedford Hills, Beacon and Fishkill prisons are within a 2 hours drive of New York City. For an early commentary on the importance of family contacts see William G Nagel, The New Red Barn: A Critical Look at the Modern American Prison. New York, 1973.

[30] Scott MacKay, "Legislators brace for altered districts in wake of Census", Providence Journal-Bulletin , March 12, 2001 at 1A.

[31] From a calculation in City Project, Following the Dollars: Where New York State Spends its Prison Moneys, March 2000.

[32] U.S. Const. Art I, Sec 9 P 1.

[33] Michael Kranish, Electoral College count looming larger this year, Boston Globe Oct 26, 2000, quoting Yale Law School Professor Akhil Amar.

[34] Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson. M.E. Sharpe, Inc, NY: 2001, Chapter 1.

[35] Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict Newhouse News Service. viewed April 21, 2002.

[36] Franklin v. Massachusetts 505 U.S. 788 (1992)

[37] New York State Const. Article 3, Section 4.

[38] Stifel v. Hopkins 477 F.2d 1116 (1973)

[39] New York State Const. Article 2, Section 3.

[40] New York State Const. Article 2, Section 4.

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