One crusading lawyer from Northampton thinks this little clerical matter is a big problem for American democracy.
By Drake Bennett, Globe Staff
September 26, 2004
Peter Wagner spends most of his time crunching numbers, but he knows the power of a good story. One of his favorites is about Michael Cady, a late-19th-century homeless New Yorker who would serially plead guilty to vagrancy so he could live in the Tombs prison. Cady became such a fixture that the wardens paid him to run errands. On one of these he decided to register to vote, but he made the mistake of listing the Tombs as his address. He was arrested and convicted of illegal registration. No one, the court said, not even a homeless man voluntarily committing himself to incarceration, could be said to actually live in jail.
Wagner agrees — though it’s not what one would expect from a lawyer devoted to the cause of prisoners’ civil rights. And if Michael Cady was wrong, then the United States Census’s policy of counting prisoners where they’re incarcerated rather than where they’re from is also wrong. And that’s exactly the point that Wagner has fervently dedicated himself to making over the past four years.
Working out of the Northampton-based Prison Policy Institute, a small research organization he cofounded, Wagner has become the leading public critic of what he calls the “prisoner miscount.” He has amassed data on 10 states (he is currently working on a study of Massachusetts), showing the repercussions from the federal down to the county level. He has testified at state redistricting committees and Congressional briefings and has written op-eds, law review articles, and letters to the editor. In recognition of his work, he was recently awarded a fellowship by the Soros Foundation’s Open Society Institute for his work.
“Peter has not only taken this issue farther than anyone else in the country, he is light years beyond the rest of the people who are thinking about it,” says Tracy Huling, a prison policy researcher and documentary filmmaker who first introduced Wagner to the issue.
The electoral implications of how we treat felons have been hotly debated since the 2000 election, when Florida’s felon disenfranchisement policies may have helped tip the state to Bush. How the census counts prisoners may seem a marginal concern compared with the disenfranchisement of significant numbers of minority voters. (According to two studies released this week, one in five black men in Rhode Island and one in eight in Georgia are barred from voting due to a prior conviction.) But the prisoner count is more than a mere clerical matter. Census figures are used to draw legislative districts, and, to a lesser degree, to determine the allocation of state and federal funds.
As a result, Wagner argues, urban, Democratic districts with high incarceration rates are losing political clout to the rural, Republican districts where prisons are increasingly being built. Across the country most felons are being nominally represented by legislators who not only can safely ignore them — inmates can’t vote in 48 states — but whose political fortunes are tied to the growth of the corrections industry. With a national prison population of 1.5 million (plus 700,000 in local jails) and growing, the result, Wagner argues, is a fundamental distortion of the democratic process.
“What’s kind of difficult about this is that nobody knows how their government works,” Wagner said on a recent morning at Western New England College Law School in Springfield, his alma mater. After we had been talking for less than an hour, he told me I had already learned more about the census and legislative redistricting than most legislators ever do.
Wagner realizes that he’s not working with the most scintillating material, but he is a born pitchman. Slight and pale, with a dark ponytail and a bobbing, purposeful walk, he speaks fluidly, flipping between earnestness and wise-guy cynicism. He refers frequently to a set of painstakingly coded state and national maps that he carries with him in two ungainly document cases.
Since the country’s first census in 1790, prisoners, like most everyone else, have been counted at their “usual residence,” defined as the place one “lives and sleeps most of the time.” But in the past 20 years, two factors have given new significance to the debate over where prisoners actually should be said to live.
One is the number of inmates: From 1925 — the first year such records were kept — until 1980, the incarceration rate was stable at about 1 per 1,000 US residents. Since then the rate has nearly quintupled, swollen by harsher sentencing laws and stricter parole requirements. At the same time, rural communities crippled by the collapse of traditional industries like agriculture and mining are desperate for the jobs that prisons bring, and their legislators have learned to see prisons as prime political pork.
A few towns, most famously Florence, Ariz. (home to two state prisons, three private prisons and a US Immigration and Naturalization Service detention center), have used their prison count to gain a larger share of government funding. A handful of states use population figures to divide up state-tax revenue, and the federal government takes them into account for road-building, job-training and community development funds. But Wagner and others who have looked at the funding formulas have found that, in fact, the funding distortions are minimal.
The more significant misallocation, Wagner says, is not money but power. The effect is most pronounced at the state level, since state legislative districts are smaller and more susceptible to population swings of a few thousand. In Massachusetts, the 37th Middlesex assembly district (comprising Acton, Boxborough, Harvard, Shirley, Lancaster, and Lunenburg) is 7 percent prisoners. New York’s 59th state senate district claims 13,000 prisoners to get to its total of 290,000. Prisoners in these districts add weight to each voting inhabitant’s voice. In the 37th Middlesex, Wagner argues, 93 votes carry the same weight as 100 from a non-prison district.
Wagner insists that these small warps can have statewide impacts. Legislative districts are required to be the same size throughout a state. If the census started counting prisoners at their last known non-prison address, for example, districts with large prison populations would have to expand to make up for the lost population.
Wagner showed me on a series of maps how the process might play out in the New York State Senate. As each rural upstate district lost its prisoner population, to regain sufficient inhabitants it would have to reach into the next district, which in turn would have to reach into its neighbor. Wagner calls this effect “the cascade.” At the same time, urban districts would cascade in the other direction as they became, on paper, more densely populated. Somewhere in the middle (probably, he figures, in the suburbs around New York City) the two waves would meet, shifting the balance between urban Democrats and suburban Republicans in competitive districts and, as a consequence, the whole legislature.
As Wagner admits, prisoners aren’t unique in being counted in the census but denied the vote — children and immigrants suffer a similar fate. But prisoners’ interests, he argues, tend to be especially divorced from those of their legislators. The weight of the prison population strengthens the very districts and legislators with the most stake in tough-on-crime policies that create and fill more prisons — figures like Dale Volker (a favorite target of Wagner’s), the Republican state senator from New York’s 59th district who has helped stymie popular efforts to reform New York’s stringent Rockefeller drug laws.
Wagner goes so far as to invoke the Constitution’s infamous three-fifths clause, which counted slaves as three-fifths of a person for the purpose of Congressional apportionment. “[It] wasn’t so much an insult to the slaves,” Wagner says. “They were already property, they weren’t even legally people, they weren’t going to vote. But crediting their numbers to slaveholders, the worst people in the world for them, made it that much worse.” The South used that added power to protect slavery against the more populous North for 70 years.
But the three-fifths clause mattered as much as it did because in 1860 the United States had 4 million slaves in a population of 32 million, a proportion that even the most draconian prison policy would take a while to reach. The effects Wagner is talking about are shifts at the margins. He can’t be sure, for example, that any electoral effects of the “cascade” wouldn’t be blunted by the creative gerrymandering of incumbents determined to keep their seats. And even if the Census agreed to change its policy, poor rural districts would likely still support prison expansion for the economic benefits they’re thought to bring.
According to Karen Mills, a Census Bureau analyst, there are no plans to change the prisoner residence rule. Inmates are counted, she pointed out, just like residents of nursing homes, college dormitories, long-term hospitals, and domestic military bases. Besides, she says, “it would be a logistical nightmare for the Census Bureau to have to contact all of the state and federal prisons in all 50 states and find out where [their prisoners] were going to go after they got out, or where they were sentenced, or where their own home is. They may not even have a home.”
Wagner believes that it would be easiest if the census methodology were simply changed — ideally before the 2008 dress rehearsal of the 2010 Census. But he maintains that the real fault lies with the state and federal agencies that use the data, and he thinks a court might agree with him. Many state constitutions — including Massachusetts’ — define residency differently from the Census Bureau, not as where one happens to be, but where one “chooses” to be. While he’s not working on any litigation, Wagner thinks a group of urban plaintiffs could conceivably use that definition to sue their legislators for drawing districts that unconstitutionally diluted urban votes.
That, of course, would require that people start seeing the matter not as a prisoner problem but as their own. Wagner sees this shift already happening — in rural prison counties, of all places. Recently, non-prison towns in New York’s Greene and Franklin Counties, feeling shortchanged in county-wide apportionment calculations, got the county government to stop neighboring towns from counting their prisoners.
As Wagner says, “When [rural] citizens recognize that this hurts them they want it changed. Which is good, because it means that the number of people who see themselves losing their democratic right in some important way from the census is expanded from urban people to rural people who don’t happen to live next to the prison.” And the more people feel shortchanged by the census, the more Wagner feels he’s doing his job.
Drake Bennett is the staff writer for Ideas. E-mail firstname.lastname@example.org © Copyright 2004 The New York Times Company