Before Census, a Debate Over Prisoners
Critics Say Current Method of Counting Inmates Distorts Rural, Urban Tallies

By Keith B. Richburg
Washington Post Staff Writer
Sunday, April 26, 2009

NEW YORK -- Elizabeth O'C. Little, a Republican state senator, represents a rural Upstate district larger in square miles than Rhode Island and Connecticut combined. But more than 13,500 of her constituents are not living there by choice, they could not vote for her if they wanted to, and most will leave the first chance they get.

Those unwilling constituents are incarcerated in one of 13 prisons -- 12 state and one federal -- that have given her district the nickname "Little Siberia." Without the prisoners, the district, which stretches to the Canadian border, may not have the minimum population required to earn a seat in the state Senate.

And while the inmates live behind bars, there is a recurring question as to whether prison is where they actually "reside."

In Little's opinion, the inmates reside in her 45th District, and her district is where they should be counted as residents during the 2010 Census.

"I think the inmates, like everyone, should be counted at their place of residence on that particular day," Little said. She said the inmates are no different than other temporary residents -- students living in dormitories, or developmentally disabled people in a center -- living away from their permanent addresses but counted where they reside on Census Day, April 1, 2010.

But for some civil liberties groups and the nonprofit Prison Policy Initiative, which has analyzed the last census numbers, counting inmates in prisons distorts population numbers in New York and several other states. Rural areas are shown to be more populous than they are, these critics say, while urban areas -- which produce most of the inmates -- are routinely under-counted.

States and counties rely on population numbers from the census to draw their legislative districts. In New York and some other states, Republicans continue to have clout in legislatures because they are elected from safely conservative, rural districts even as those areas lose people. The exception to that population decline: inmates, whose numbers have grown because of tough mandatory sentencing laws.

"It's systemic distortion," said Peter Wagner, executive director of the Massachusetts-based Prison Policy Initiative. "You have a disproportionately black and Hispanic male population that is counted in the wrong spot."

In Albany, Alice Green, founder and executive director of the Center for Law and Justice, which works on criminal justice issues, said that "when I saw the huge number of African Americans in some of these counties, I was shocked."

"In Upstate New York in some of the counties, the [black] people in prison outnumber the free African Americans," said Green, who is from an Adirondack mining town and earned her doctorate in criminal justice in Albany. Because the prisoners cannot vote but are counted as constituents, she said, "they are not represented, and they are totally exploited."

"The people elected in those districts with high prison populations are more conservative and support more mass incarcerations and the existence of prisons," Green said. "They use the numbers to get elected, but they don't represent [the prisoners'] interests."

The question of how to properly count prisoners has been a long-standing concern for the NAACP. "It's been troubling us for quite some time," said Hilary O. Shelton, a vice president and director of the Washington office.

"Over 40 percent of America's prison population is African American, and we make up 13 percent of the American population," he said. "Virtually all of these prisons are outside the inner cities where most African Americans live."

The Census Bureau has no plans to change the way it counts prisoners in 2010. Spokesman Robert Bernstein said, "We're following the concept of 'usual residence' -- where the person lives and sleeps most of the time."

Under the concept, as explained on the bureau's Web site, people who are temporarily away from their usual residence on Census Day -- vacationers or business travelers, for example -- will be counted as residents wherever they live "most of the time." People "without a usual residence . . . will be counted where they are staying on Census Day."

One problem with that method of counting, critics say, is that most prisoners do not stay in the area after their release. "More often than not, they go back to the community they came from," Shelton said.

An alternative would be to count prisoners at their last known address -- an approach favored by the NAACP and New York Mayor Michael R. Bloomberg (I).

"The city supports a change in the residency rule for prisoners in the 2010 Census from the address of the institution where they are incarcerated to the last known permanent residence prior to incarceration," said Marc LaVorgna, a spokesman for Bloomberg. "This would allow for a more fair allocation of political representation and dollars for New York City, which has a substantial prison inmate population in institutions outside of its boundaries."

Little, a law-and-order Republican who voted against the recent overhaul of the state's drug laws, thinks counting the prisoners as residents of her district makes sense. "Actually, it was the influences at home that got them into trouble in the first place, so maybe they'd be better off someplace else," she said in a phone interview.

She said the prisons in four of the six counties in her district have a big economic impact -- including on the water supply, the sewers and the roads traveled by prison workers and visiting relatives.

Whether temporary residents "are in a dormitory, a nursing home, student housing or a prison, they are using the infrastructure," Little said.

Besides, she said, the reason her district has so many prisons is "because no one else wanted them."

There is a practical side to the arguments, as well. A New York Senate district is supposed to have 306,000 people, though that number is allowed to vary by 5 percent. According to the state's 2002 Census task force and the Prison Policy Initiative, the 45th District had 299,603 residents, within the 5 percent margin.

However, without the 13,500 prisoners, the 45th would need to be redrawn to remain a separate district. Other New York districts similarly have large numbers of prisoners, including the 59th, which includes Wyoming County, where Attica maximum security prison is located. The 59th District is home to about 9,000 prisoners, according to the 2000 Census.

Wagner, of the Prison Policy Initiative, found in a recent analysis that seven Upstate districts would not meet the population requirement without including inmates.

At a minimum, he said, the Census Bureau should disclose where the prisons are located in their tally. "This is one of the things that gives that region extra influence," he said.

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