by Jonathan Tilove, Newhouse News Service. March 12, 2002
Nearly half of New York state's prisons are located in the overwhelmingly white, rural upstate districts represented by four Republican state senators. While the inmates cannot vote, their numbers count as population for redistricting and augment the leverage of the senators in whose districts they are incarcerated. The Auburn Correctional Facility is in the 53rd Senate District of Michael F. Nozzolio. (File photo by Dick Blume)
The inmates at Attica prison in western New York state are represented in Albany by state Sen. Dale Volker, a conservative Republican who says it's a good thing his captive constituents can't vote, because if they could, "They would never vote for me."
Even so, the very presence of the more than 11,000 inmates at Attica and seven other correctional facilities in Volker's vast rural district buttresses his incumbency as New York redraws its legislative and congressional lines in accordance with the 2000 Census.
Prisons can be a coveted prize in this process, swelling a district's population with constituents who cannot vote. Most of America's huge prison population is black or brown, and many of America's prisons are located in very white rural areas, so counting prisoners where they are incarcerated effectively redistributes power away from urban communities of color.
The beneficiaries are often legislators like Volker, a former police officer who chairs the New York state Senate committee that has overseen get-tough-on-crime and prison policies that have made corrections such a lucrative growth industry in remote districts.
The issue hasn't gained much serious attention or debate at the national or state levels. But growing numbers of local officials are confronting the distorting effects of drawing town or county district lines in sparsely populated communities with big prisons.
Officials in a couple of Cajun parishes in Louisiana have obtained the state's OK not to count their local prison numbers in drawing school board district lines. A bill sailing through the Colorado Legislature would remove the prison population from the census numbers used by counties in their internal redistricting. And county commission members in the Florida Panhandle's Gulf County have ignored an opinion by the state attorney general that they must count inmates at the large Gulf County Correctional Institution and a nearby work camp in redrawing districts.
"They don't pay taxes, they don't have the right to vote, there is no reason to count them," said Nathan Peters Jr., a longtime Gulf County commissioner who lives in Port St. Joe.
The phenomenon also raises fundamental questions of fairness: Is it right that America's prison population, now mostly black and brown, should be counted in a manner that augments the power of communities with which they have no real connection or common interests?
"Allowing white, rural districts to claim urban black prisoners as residents for purposes of representation resembles the old three-fifths clause (of the Constitution) that allowed the South extra representation for its slaves -- extra representation that kept the North from abolishing slavery long before the Civil War," said Peter Wagner, who has researched the issue as a law student at Western New England College in Springfield, Mass., and as a founder of the Prison Policy Initiative. The initiative analyzes prison issues and advocates reforms.
As a case study, Wagner looked at New York. Since 1982, all new prisons there have been built upstate. Almost half the state's prisons are in the state Senate districts of four upstate Republicans who, if they could not count inmates, would have to stretch their district lines to encompass more people, setting in motion a ripple effect that eventually would reduce the Republican electorate in competitive districts closer to New York City.
And if those same prison inmates were instead counted in the communities whence they came, the population of urban districts would swell, setting in motion reciprocal ripples that would increase the Democratic electorate in those same competitive districts. Wagner estimates the net effect of changing how prisoners are counted could gain urban Democrats two seats in both the New York House and Senate.
In New York state, just over half the prison population is black. Another third is Hispanic. Of the 2 million Americans now behind bars in local, state and federal facilities across the nation, nearly half are black and 16 percent are Hispanic.
Even as Wagner studied the issue in New York, Taren Stinebrickner-Kauffman, a Duke University math major, independently researched the same question, examining data in Florida. She found that most of that state's inmates were sent to prison from counties that voted for Vice President Al Gore in 2000 and are serving time in counties that voted for George W. Bush.
Stinebrickner-Kauffman found that Gulf County, population 13,332 and solid Bush country, had sent only 81 home folks to prison, but had prisons housing 2,574 inmates. The entire 7th state representative district, of which Gulf County is a part, has nine prisons or work camps and 8,443 inmates better than 5 percent of its total population.
"We worked hard to get these facilities here in our district," said Bev Kilmer, the Republican who represents the county in the Florida House. "I represent a very rural part of Florida and the economy is very slow here. A lot of businesses don't want to move their operations to this part of Florida."
Kilmer thinks it's fair to count the prisoners as population. Her district already stretches across four complete counties and parts of four more, and without the inmates, she said, it would grow even more ungainly.
But she is also sympathetic with the folks in Gulf County who decided that counting the inmates would skew representation there in undemocratic ways, and she may file legislation to let counties disregard prison populations in their own redistricting.
Not everyone in Gulf County was happy with the decision to ignore the prison population. Commissioner Billy E. Traylor, whose district includes the prison, wanted inmates counted. He said the opposition was led by Commissioner Peters, the only black on the five-member commission. Traylor said Peters didn't want the prison numbers to swell Traylor's district to the point where some white voters would spill over into his own.
Peters called that dead wrong, saying Traylor simply preferred keeping a prison constituency to which he didn't have to answer.
In Evangeline Parish, La., attorney I. Jackson Burson went to court to block counting the prison population in drawing the school board district for the little town of Basile, where he went to high school. If prisoners were counted, many parents who send their children to schools there would have been pushed out of that district.
"We felt like it didn't make common horse sense," said Burson, citing a 1966 Supreme Court decision and a 2000 federal Fifth Circuit Court of Appeals ruling.
School board members agreed, using a state law allowing a "special census" for redistricting which they interpreted to include the regular census minus inmates.
Nearby Iberville Parish did the same. Had it not, said Baton Rouge-based redistricting consultant William Boone, it would have ended up with a school board district with only two eligible voters, both Asian.
In eastern Colorado's Crowley County, commissioners are elected by the countywide electorate but must run from and live in a particular district. Counting inmates there, according to commissioner T.E. "Tobe" Allumbaugh, would have created a "prison" district without possibility of representation.
"It's a little bit of a joke," Allumbaugh said. "(The inmates) can't vote. If they complain forever there's a good chance I will never hear about it. There is a reason why they are in there, a reason why they don't vote, a reason why they don't pay taxes."
Volker in New York and Kilmer in Florida say they do get letters from inmates with a variety of complaints, but that their real attention is directed toward corrections workers, with whom both have forged strong relationships.
Wagner contends that just as important as the shift of power out of New York's urban districts is the shift upstate toward policies that perpetuate prisons and large inmate populations.
Volker's district extending 75 miles from the Finger Lakes to Lake Erie is 95 percent white. More than half the prison population is black and nearly 80 percent of the district's black population is inmates.
Volker believes it is fair to count the inmates as population because the prisons are where they are, and because, he believes, the 2000 census so terribly undercounted the population upstate. He is sure that his home county, Wyoming, gained more than 917 people in the 1990s, though he acknowledges it remains a part of New York with "more cows than people" and that between the cows and the inmates, he would sooner trust his electoral fate to the cows.
"I'd take my chances with them," Volker said. "They would be more likely to vote for me."
Jonathan Tilove can be contacted at firstname.lastname@example.org