Census Quirk Sustains New York’s Love Affair with Prisons

Prison gerrymandering provides perverse incentives to legislators with prisons in their districts to support punitive criminal justice policy.

by Peter Wagner, August 1, 2002

Appeared in the August 2002 issue of the Albany NY’s Center for Law and Justice newsletter.

By Peter Wagner

New York’s budget is in crisis and prisons are a huge drain on limited resources. But when the budget- and humanity-busting 30-year-old Rockefeller Drug laws come up for review, the Legislature can’t agree on a plan to roll back these draconian drug laws. Drug treatment is cheaper and more effective than prison, but somehow the Legislature can’t find the will to save the budget and pass drug reform.

Besides the usual economic interests that accompany every bloated government program is something else subverting democratic decision making in New York State: in violation of the State Constitution, prisoners are counted for purposes of representation in the rural towns that contain their prisons. As a result, whole communities are disenfranchised from their rightful share of political power.

The Census counts prisoners were they are incarcerated, and the state uses Census Bureau population data to draw legislative boundaries so that each district will be “equal” in size. Prisoners aren’t allowed to vote, but their presence in upstate communities swells the otherwise declining population of the region.

While only 24% of New York prisoners are from the entire upstate region, over 91% of prisoners are incarcerated there. On a personal level, prisoners shipped upstate for incarceration “reside” there in only the most physical terms: the lives that prisoners must leave behind, their homes and families remain in the communities the prisoners originated from, the communities that almost all prisoners will return to on the day of their release. On a political level, it is the urban minority communities ravaged by the war on drugs that have the greatest desire to see drug law reform.

Opposing these urban communities have been the upstate prison legislators. Some of the strongest proponents of prison expansion 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 they have been using their Committee perches to lead the fight against repeal of the Rockefeller Drug Laws that caused the prison boom in the first place. The prisons in their two current districts account for more than 23% of the state’s prisoners.

Of Volker’s constituents, 3% are incarcerated (4% of his adult population is in prison). Of his “constituents” who are Black adults, over 75% are disenfranchisd. Thanks to the traditional gerrymandering in New York, Volker’s district is smaller than it should be, but with 8,951 prisoners he can safely ignore, Senator Volker can devote himself to the needs of his real constituents with a kind of individual attention that his urban colleagues can not. Lest readers think this is hypothetical or hyperbole, consider who prisoners can turn to for help: the local senator or their senator from home? 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. So much for the idea that legislative districts are drawn to protect common “communities of interest”.

Because 65.5% of prisoners are from New York City, but only a few small prisons exist within the city, 43,740 city residents are counted as upstate residents. This is a boon to prison legislators, as its concentrates their power base. Said Rhode Island State Representative Peter Palumbo of his own similar asset: “All these years the prison has caused me grief with my constituents. Now maybe it will help with redistricting.”

If the legislature wanted to fairly and democratically address pressing issues like rural unemployment, urban crime, the budgetary crisis and drug addiction, the legislative districts would be drawn on the basis of actual population. 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. Allowing white rural prison communities to appropriate urban minority residents for the purpose of representation runs counter to any idea of equal protection under the law.

While this census and redistricting practice appears to to violate the one-person one-vote guarantee of federal constitutional law, it most definitely violates the New York State Constitution which states: “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.”

In 1894 a vagrant living at the Tombs jail named Michael Cady, on one of his paid errands outside the jail tried to register to vote using his Tombs address. Under that provision of the state constitution, Cady was arrested and convicted of illegal registration. Not for registering to vote — since that was legal given Cady’s commitment was for vagrancy — but for using the Tombs address. You can not live in a prison, you must have lived somewhere else before or plan to after, argued the prosecutor. The trial judge, jury and the state Court of Appeals agreed with the prosecutor.

It is certainly ironic that the New York State Constitution required imprisonment for individuals who use prison as a residence in just the same manner that the state legislature allocated residence to the 71,466 state prisoners counted by the Census.

Peter Wagner is Assistant Director of the Prison Policy Initiative and the author of “Importing Constituents: Prisoners and Political Clout in New York” which can be viewed at: http://www.prisonpolicy.org/importing.

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