Volume 107
Issue 1
Oct. '18

Where Does a Prisoner Live?: Furthering the Goals of Representational and Voter Equality Through Counting Prisoners

Written By: Amee Frodle


Until the past few decades, the question of where to count prisoners1 for purposes of districting was a relatively benign inquiry, if it came up at all. However, an explosion of mass incarceration beginning in the 1980s has resulted in the imprisonment of a huge percentage of the United States population: in 1978, approximately 307,000 people were incarcerated; in 2016, over 1.5 million people were incarcerated.2 With incarceration having thus become a pervasive issue, the question of where and how to count this ever-increasing number of people has become political and thorny.3 Due to the reliance on the decennial Census for districting, much of the discussion has centered around the proper application of the “usual residence” rule, which counts a person at the place where he or she “lives and sleeps most of the time.”4 Although such a standard may produce a clear location for the majority of the population, the “usual residence” Census standard presents real issues when considering prisoners, who usually reside in a specific location, for a relatively short period of time, against their will.

Multiple issues are raised by the application of the usual residence rule. Do we count prisoners at the prison on Census Day? If not at the prison, then where? Is it lawful to alter the data from the Census? Is it lawful to not alter the data from the Census? Which option most comports with our ideas of what it means to be a citi- zen in a democracy? What are the consequences for districts and citizens if we count prisoners in either the location of the prison, or their home prior to incarceration?

The goal of this Note is not to state what we must do in regard to these questions, but only what we should do if we are attempting to adhere to either of the two democratic theories of representation suggested by the one-person, one-vote principle from Reynolds v. Sims .6 This Note addresses the current state of the law and the Census, and analyzes the two democratic theories of representation: Voter Equality and Representational Equality. This Note argues that the current regime of counting prisoners does not successfully adhere to either of the two theories, and that counting prisoners in their pre-incarceration address, although imperfect, adheres more closely to both theories.

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For the purposes of this Note, the term “prisoners” is used to denote those who are incarcerated at a prison or penitentiary, as opposed to a jail. Because jails tend to hold members of the local population and are used to house people for short periods of time, or prior to trial, they do not present the same issues that prisons do for the following analysis.

2. See BUREAU OF JUSTICE STATISTICS, CORRECTIONS STATISTICAL ANALYSIS TOOL (CSAT) – PRISONERS: YEAREND JURISDICTION POPULATION: PRISONERS UNDER THE JURISDICTION OF STATE OR FEDERAL CORRECTIONAL AUTHORITIES, DECEMBER 31, 1978–2016 (2018), https://www.bjs.gov/index. cfm?ty=nps [https://perma.cc/7XJY-9HQZ]; see also Dale E. Ho, Captive Constituents: Prison-Based Gerrymandering and the Current Redistricting Cycle , 22 STAN. L. & POLY REV. 355, 358 (2011).

3. See Complaint at 27, Little v. N.Y. State Legislative Task Force on Demographic Research & Reapportionment, No. 2310-2011 (N.Y. Sup. Ct. Dec. 1, 2011).

4. 2020 Census Residence Criteria and Residence Situations, U.S. CENSUS BUREAU,https://www. census.gov/programs-surveys/decennial-census/2020-census/about/residence-rule.html [https://perma. cc/VZV5-QWCW](last updated February 9, 2018).

5. Cf. Jonathan Tilove, Minority Prison Inmates Skew Populations as States Redistrict, PRISON POLY INITATIVE (Mar. 12, 2002), http://www.prisonpolicy.org/news/newhousenews031202.html [https:// perma.cc/F5B9-A2EX].