Using incarcerated people to grant additional political clout to areas with prisons harkens back to the pernicious 3/5 clause

by Peter Wagner, January 17, 2003

Appeared in the Winter 2002-2003 issue of Fortune News, published by the Fortune Society.

By Peter Wagner

Imagine that in some parts of the country, the local economy depends on the maintenance of a large population of working-age Blacks. Regional politicians stake their careers on keeping the number of young Blacks high, but extend the electoral franchise to no more than a handful. In one studied county, the 2,395 Blacks made up a sizable portion of the 43,424 total population, but the number of Blacks allowed to vote is just 72.

This could be a description of the Jim Crow South; but it’s not. It resembles — but it’s not — the situation after the Constitutional Convention where Southern states were allowed to keep the vote from their Black populations and yet count each Black slave as 3/5ths of a person for purposes of representation in the House of Representatives and the Electoral College.

What this does represent is the situation in Wyoming County, New York — the home of the infamous Attica Prison — “represented” by State Senator Dale Volker. Prisons are big business in his district, and Volker uses his perch on the Committee on Codes to expand over-criminalization and defend the Rockefeller Drug Laws that caused the prison boom in the first place. (Almost a third of New York State prisoners are incarcerated solely for drug offenses.)

Shoring up Volker’s political power are the 8,951 prisoners that the U.S. Census counted as rural residents of his tri-county district. Few of the prisoners are from his district, and none are allowed to vote. However, as a result of this Census quirk, the prisoners are counted as local residents for purposes of drawing legislative boundaries and attracting population-based state and federal aid.

While only 24% of New York prisoners are from the entire upstate region, over 91% of prisoners are incarcerated there. The largest portion of state prisoners (65.5%) are from New York City, so allowing the Census to count prisoners in their cells costs the city 43,740 residents. This figure represents a third of a district in the State Assembly, and dwarfs in magnitude the traditional debates about whether the inclusion of an additional neighborhood or street could tip a future election.

Like many states, New York’s constitution mandates that residence is where you choose to be and that “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, New York incarcerated a man named Michael Cady for using prison as a residence in a manner measurably less offensive to the State Constitution than that the New York State Legislative Reapportionment Taskforce used to allocate residence to the state’s 71,466 prisoners.

The federal Census counts prisoners were they are incarcerated because it’s a convenient way to fulfill the Census’ only mandate: to count the number of people in each state for purposes of assigning each state the appropriate number of seats in the House of Representatives and Electoral College. But for distributing political power within a state, this methodology is inappropriate because it does not accurately reflect where a state’s population resides.

Michael Cady was a homeless man who would confess to vagrancy and get himself committed for 6 month terms to the Tombs jail. He was planning on doing so indefinitely. More than once, Cady would forget his time was up, and fail to “re-confess” to vagrancy; but the jailers would let him stay anyway. In 1894, Cady, on an occasional paid errand outside the jail, tried to register to vote using his address at the Tombs. For violating 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, successfully argued the prosecutor.

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.

According to the federal constitution’s one-person-one-vote rule, legislative districts are supposed to be equal in size to guarantee all residents equal access to government. In fact, the only deviations allowed from strict population equality are where a small deviation could avoid crossing a geographic boundary or other “community of interest”.

On a personal level, prisoners shipped upstate for incarceration “reside” there in only the most physical terms: the lives, 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.

Senator Volker readily admits that he doesn’t represent the prisoners in any real sense, telling Newhouse News Service that 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.

Transferring population out of the cities reduces the resulting number of legislators who will represent urban interests, and makes each legislator responsible for their “official” district plus those community members incarcerated elsewhere.

Senator Volker’s real constituents no doubt love the arrangement, because their issues can then receive individual attention unavailable to downstate citizens. The legislators themselves recognize how this helps them. 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.”

Nationally, speaking, prisons have become a growth industry for rural America, with a new prison opening in a small town every 15 days over the last decade. Now a $49 billion industry, prisons have developed the economic muscle to bend state priorities to its needs rather than the other way around. The practice of transferring the political clout of prisoners from their communities to the prison town removes the most important counter-balance to the growing economic clout of the crime control industry: the democratic power of the populace.

On this question of allowing communities to appropriate the political power of their opponents via the Census, we would be well advised to look at the impact on national history of the 3/5ths clause. Thanks to its added population, for 32 of the first 36 years of the country, the President was a slave-holder from the otherwise small state of Virginia.

Artificially boosting the political power of the South created a national stalemate that prevented the creation of a democratic solution to the slavery problem. What might have been resolved peacefully in the 1790s became the Civil War in the 1860s.

Today, a similar democratic and economic impasse presents itself in the debate over crime control policy. As the economy constricts and state budgets contract, it is absolutely essential that our political structure be responsive to changing needs of the people. A democratic catastrophe awaits if we continue to postpone answering this vital question:

How is it that the legislatures have funded prison expansion year after year when the evidence has always been clear that prisons don’t stop crime?

Peter Wagner is Assistant Director of the Prison Policy Initiative.

On Jan 11, 2003, outgoing Illinois Governor Ryan reduced the death sentences of all 167 prisoners to life or other sentences.

by Peter Wagner, January 12, 2003

On Jan 11, 2003, outgoing Illinois Governor Ryan reduced the death sentences of all 167 prisoners to life or other sentences. The day prior, he freed four death row prisoners who were innocent.

“The facts that I have seen in reviewing each and every one of these cases raised questions not only about the innocence of people on death row, but about the fairness of the death penalty system as a whole,” –Gov. Ryan

“Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.”–Gov. Ryan

“The Legislature couldn’t reform it, lawmakers won’t repeal it, and I won’t stand for it U I must act. Because our three-year study has found only more questions about the fairness of the sentencing, because of the spectacular failure to reform the system, because we have seen justice delayed for countless death row inmates with potentially meritorious claims, because the Illinois death penalty system is arbitrary and capricious U and therefore immoral.” –Gov. Ryan

According to the New York Times:

“Governors have broad, virtually unchecked constitutional powers for pardons and clemency, and Mr. Ryan is at least the fourth to empty death row as he departs office, though the scale of his action overshadows the 22 men Gov. Lee Cruce of Oklahoma spared in 1915, the 15 death sentences Gov. Winthrop L Rockefeller of Arkansas commuted in 1970 and the five clemency petitions Gov. Toney Anaya of New Mexico granted in 1986.”

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