Upcoming Elections Underscore Need for Reform of Prison-Based Gerrymandering


Impending local, state, and national elections are shining a spotlight on prison-based gerrymandering: the practice of counting incarcerated people not in their home districts, but as residents of the towns where they are confined. Counting incarcerated people in the wrong place distorts population-based political representation, and the need for reform has become increasingly urgent as the number of Americans in prison skyrocketed from 300,000 to 2.3 million over the past 40 years.

The Constitution requires the United States Census Bureau to conduct a count of the population every 10 years in order to determine the number of representatives each state will have in Congress. The Bureau counts incarcerated individuals as residents of the towns where they are imprisoned, and state legislators use that data to draw district lines. Known as prison-based gerrymandering, this practice disproportionately harms urban, minority communities while benefiting rural, white communities. 

Recognizing that people often spend substantial amounts of time away from home, the Census Bureau counts an individual in the place where he lives and sleeps most of the time, which may not be the same as his voting or legal residence. Under this approach, the Bureau counts incarcerated people as residents of the district where they are incarcerated, even though they cannot vote and will return to their homes after serving less than 34 months on average, and even though they are treated as residents of the place they lived before they went to prison for virtually all other purposes.

Because prisons are mostly built in rural areas, but most incarcerated people are from urban areas, counting incarcerated people in the wrong place results in the transfer of population – and political clout – from urban to rural areas. For example, 60 percent of Illinois prisoners are from Cook County (Chicago), but the census counts 99 percent of them outside that county.  

Of the approximately 22,000 people incarcerated in Maryland, 68 percent are from Baltimore City, but nearly 85 percent of the state’s prisons are in rural or suburban communities. Similarly, 66 percent of New York’s prisoners are from New York City, but 91 percent are incarcerated in rural districts upstate. Nationwide, an estimated 40 percent of all incarcerated people are counted in rural areas.

The transfer of population from urban to rural areas amounts to a transfer of political clout from communities of color to white districts. New York’s prison population is 77 percent African American or Latino, but 98 percent of the state’s prison cells are in majority-white districts. As a result, white communities benefit from inflated population counts at the expense of the urban, overwhelmingly minority communities from which most prisoners come. 

White rural districts with large prisons get more representatives in their state legislatures, while poor urban communities of color lose representatives. Vote dilution is largest in the districts with the highest incarceration rates. In this way, prison-based gerrymandering resembles the 1787 constitutional provision that directed the census to count an enslaved person as three-fifths of a person: both policies allot greater political power to districts in which most residents are denied the right to vote.

At least four states and some 200 municipalities recently have enacted reforms to correct political landscapes distorted by prison-based gerrymandering. Maryland and New York are the latest to pass laws that require incarcerated people to be counted in their home districts, and organizations including the NAACP Legal Defense Fund, the American Civil Liberties Union, Demos, the National Black Caucus of State Legislators, the Brennan Center for Justice, the Census Bureau’s African American Advisory Committee, and the Prison Policy Initiative are urging other jurisdictions to follow suit.