By Asher Price
November 8, 2004
It seemed like a simple enough question.
As state Rep. Harold Dutton, D-Houston, searched during the last redistricting for ways to ensure that Harris County would maintain its 26-person delegation in the Texas Legislature, he thought of a creative solution.
"How do we count our prisoners?" he asked his staff.
By including prisoners from Harris who are incarcerated elsewhere in the state as part of the county's population, it could maintain its level of representation.
But Dutton's basic question raises larger ones about the allocation of power within Texas and the distribution of federal and other funds. And it evokes more profoundly the issues involved with the locking up and disenfranchisement of large minority populations that date to the counting of slaves.
Prisoners, as it turns out, are counted by census takers as living in the community where they are incarcerated, rather than in the neighborhood they call home.
Where prisoners are counted -- in penitentiaries usually in rural areas far from home -- effectively ships out clout, taking federal and state dollars, and social services, from urban areas to rural ones.
The fact that those prisoners almost invariably return to their urban roots compounds the inequity, according to critics.
"The bottom line is, the more people you get, the more money you get," state Rep. Warren Chisum, R-Pampa, said.
His District 88, the largest in Texas with 19 counties, has as many as 4,000 prisoners at any given time. Many, he estimated, are from Houston, about 600 miles away.
"A lot of federal funds as well as state funds are divided on population, and it's important to rural areas that we have these people up here in jail," Chisum said.
In the past year, academics and researchers working independently have argued that the method of counting prisoners establishes unequal powers among districts and skews a state's public policy agenda.
They say the current method of counting prisoners -- and its uses -- eerily echoes the issues surrounding the U.S. Constitution's notorious clause in which slaves counted as three-fifths of a citizen for key apportionment decisions. And they say that Texas, with roughly 165,000 federal and state prisoners, presents a model problem.
In the 2001 legislative session Dutton proposed a bill that would count prisoners at their last known address before incarceration. It was approved by the elections committee but failed on the House floor.
"Members of the Legislature thought I was joking," said Dutton, whose district has now ballooned in square mileage to compensate for a decreasing population. His colleagues laughed it off, he said, as a frivolous piece of legislation.
But the problem is a deep one with significant implications, according to "Importing Constituents: Prisoners and Political Clout in Texas," a report to be released today by the Prison Policy Initiative, a Massachusetts-based research and advocacy group dedicated to reforming prison policy.
Texas now has two House districts that have almost 12 percent of their residents behind bars; the prisoners lack voting rights but are considered when legislative districts are carved out, each with roughly 139,000 people. Ten counties have more than 20 percent of their citizens in prison. And, in what prison reformers say is a key to the problem of rural power, those prisoners hail disproportionately from the city's main urban areas.
"It seems to me a double injustice," said Kenneth Prewitt, a professor of public affairs at Columbia University and the Census Bureau director from 1998 to 2001. "There are rural areas deliberately (building prisons) to set up a census count that diverts funds that would normally go to cities."
The arguments of rural legislators unwilling to relinquish their prison populations, coupled with an entrenched federal bureaucracy that governs the census, make a quick fix unlikely. Dutton's bill points to the tug of war over the issue. Its stiffest opposition came from legislators from rural areas with significant prison populations.
Chisum said if the prisoners from his district were counted in other counties, his district would grow even larger in square miles, by two or even three counties, to reach the population number needed for a district. That, he said, hampers adequate representation in the statehouse.
A number of researchers, however, have argued that counting prisoners in the place of incarceration shortchanges urban areas and might even be unconstitutional.
According to Accuracy Counts, a report published last spring by New York University's Brennan Center for Justice, more than 650,000 people leave prison each year, "virtually always" returning to the neighborhoods where they lived before their incarceration. Dutton contends that the social services they require in these inner-city areas are being siphoned by rural areas.
But state Rep. Lois Kolkhorst, R-Brenham, said large prison populations actually disqualify counties in her district for some state and federal grants because the total county population is bumped out of a "rural" category. Her district has the largest number of prisoners within its limits: 17,000, or about 12 percent of the population.
Some say the disparity between districts might violate the constitutional principle, established in 1963, of "one person, one vote."
"An elected official in a no-prison district will effectively be responsible for, and accountable to, more constituents than the official whose district contains a large, disenfranchised prison population," Rosanna Taormina wrote in a University of Pennsylvania Law Review article. "The result is the unequal weighting of votes across district lines -- a practice that does not stand on firm constitutional ground."
But Kolkhorst said she represents the prisoners in her district as if they were other constituents. She has directed prison officials to investigate beatings and has helped with some prison transfer requests, she said.
"I'm actually their state rep," she said. "I go to the unit. I correspond with them. They're nonvoting constituents, but they are my constituents. I take it very seriously that I represent a large prison population."
Census officials say their counting technique will change only if Congress alters its definition of "usual residence," which has governed, since at least 1850, how prisoners are counted.
"We count them where they're living and sleeping most of the time at the time of the census," said Ed Byerly, chief of the housing and population branch at the Census Bureau's population division.
Texas election law seems to be at odds with the very census custom that affects apportionment. "A person who is an inmate in a penal institution," it reads, "does not, while an inmate, acquire residence at the place where the institution is located."
Byerly said the prisoner counting custom is not unusual; under the "usual residence" census rule, college students are counted at their place of study rather than their parents' home.
But that comparison is flawed, said Patricia Allard, co-author of the Accuracy Counts report. Students are, of course, more likely to have ties to the college community; students are less likely to return home upon graduation, and students move voluntarily.
Better, instead, to compare them to federal employees -- military, state department officials, etc. -- serving overseas, she argues. For the purposes of apportionment, they are counted in the states where they have "enduring ties and allegiance."
There is, of course, one other fundamental difference between college students and many prisoners: The latter can't vote. In Texas, as in most other states, prisoners and people on parole or probation are not permitted to vote.
The combination of disenfranchisement and census count has a clear antecedent, says at least one constitutional scholar. The Constitution's Three-Fifths Clause was fashioned to assure Southern states some parity during apportionment of electoral votes in the republic's early days: Slaves were counted, for the purpose of the census, as three-fifths of a person, but they were not given the right to vote.
The effect, writes Yale law professor Akhil Amar in a forthcoming book entitled "America's Constitution," was "an expanding rot at the base of America's system of representation."
Within states, voters living in "slave belts" had much more political clout than those in districts largely free from slaves. U.S. congressional district maps within slave states were also skewed to favor slaveholding regions. Although Virginia's Richmond district had less than half the population of the Wheeling district, each was represented by one congressman. Slaves, of course, made up the difference.
It was, Amar writes, "a political gift that kept giving."
The way Texas prisoners are counted today has some technical and racial similarities to the way slaves were counted, he said in an interview.
"It's not that different from rural white overseers who have extra congressional clout and electoral votes thanks to the largely minority disenfranchised populations that they are overseeing,"Amar said.
"In states like Texas with booming prisons and so many African Americans incarcerated and being disenfranchised," said Chloe Andrews, a California lawyer who has studied the relationship between prisoner counts and slave counts, "you have the added insult of their share of power used against them by people who are so clearly opposed to them."
Dutton, who said he might reintroduce his bill, has tried to meet new constituents in his now-sprawling district.
"I used to walk it, but with gas prices nowadays, I don't even drive it," he said.
 The original version of this article said that the bill was filed in 2001. The American-Statesman published a correction on November 10. The sentence is corrected above. -Peter Wagner
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