Prison-Based Gerrymandering

Prison Based GerrymanderingWhen the ACLU Pasadena Foothills Chapter joined forces with the NAACP, LA Progressive and a host of other Southern California social justice focused organizations to sponsor a talk by former ACLU attorney, Michelle Alexander, author of, New Jim Crow: Mass Incarceration in the Age of Colorblindness I asked Ms. Alexander to give the audience her condensed version of the prison-based gerrymandering phenomenon.

Characterizing it as a modern-day 3/5ths Compromise, Alexander explained that in most states census residence rules require that incarcerated people be counted at their place of incarceration as opposed to their home address.

She went on to explain that the overwhelming majority of incarcerated people in the United States hail from the major metropolitan centers of this country while the prisons are typically built in non-urban or rural areas. This counting practice results in a shift in population from urban center to rural community thereby increasing the political clout of rural communities while decreasing the political clout of urban communities.

And, all the while, the incarcerated, almost without exception, cannot vote — which explains the comparison to the 3/5ths Compromise. The compromise was written into the Constitution in 1787 at the Philadelphia Convention and wasn’t replaced until the 14 Amendment was adopted in 1868. It stated:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The reason the compromise was written into the Constitution was to incentivize the South to adopt the Constitution. Because population drives the number of congressional representatives and the tax apportionment, slave states wanted their slaves counted as part of the population. The delegates from the North, which didn’t have as many slaves as the South, didn’t want the slaves counted at all so a compromise was made. Each slave would count as 3/5ths of a person for purposes of tabulating the state’s population and determining how much political power and what share of the federal tax revenue that state would be entitled to be apportioned.

In addressing the census residence rule and specifically prison-based gerrymandering, the NAACP Legal Defense Fund reports:

Over the last several decades, the percentage of Americans incarcerated in prisons has increased four-fold. Incarcerated persons are often held in areas that are geographically and demographically far removed from their home communities. For instance, although non-metropolitan counties contain only 20% of the national population, they host 60% of new prisons.

In addition, because Latinos and African Americans are incarcerated at three to seven times the rate of Whites, where incarcerated people are counted has tremendous implications for how African-American and Latino populations are reflected in the census, and, consequently, how these communities are impacted through redistricting.

Political districts are based on population size. The number of people in a geographical region determines the number of Congressional, state and local representatives. When prison-based gerrymandering is employed, district boundaries redrawn to align with census figures results in large portions of what would have been urban population being reapportioned to rural counties.

Because of this practice, urban communities, particularly urban communities of color stand to lose the most. Census figures help determine where government money will go to fund hospitals, school services, public housing, social services, food stamps and other programs. The census figures are also used to determine how many seats each state has in the U.S. House of Representatives. Prison-based gerrymandering may result in the loss of both federal dollars and political representation for districts that are already struggling.

This is not only a problem for California but for the rest of the nation as well. According to the Prison Policy Initiative, a non-profit, non-partisan organization that documents the impact of mass incarceration on individuals, communities, and the national welfare, the United States is on the verge of a national crisis, particularly in situations where the communities that “win” are predominantly white, and the communities that “lose” are predominantly minority.

The potential negative fallout of this practice is not limited to communities of color. This could have far reaching political consequences, with Democrats more at risk for getting the short end of the stick. Consider the national impact if Florida, for example counts its growing inmate population in the sparsely populated North Florida counties, where prisons have cropped up like mushrooms over the past decade.

The Prison Policy Initiative reports that Florida’s Gulf County has two new prisons accounting for a significant percentage of its 13,000 residents; a prison built in Gadsden County could help move state legislative boundaries that affect Tallahassee and other Big Bend counties. Opinions issued by Florida’s Attorney General in August, 2001, said county commissions and school boards must include prisoners when redistricting.

Florida’s 82,000 prison inmates may figure heavily in the state’s redrawing of political boundaries. According to the U.S. Department of Justice, at year end 2008, California had over 173,000 prison inmates. These two states give some insight into the breadth of this problem. Because the census data is updated every ten years, this issue comes to the fore once a decade. But its impact lingers.

sharon kyleThere are multiple factors that explain the explosion of the prison industrial complex but one factor that is rarely addressed is the political incentive to drive criminal justice policy toward mass incarceration for purposes of shifting disenfranchised urban populations to rural communities.

Tracy Huling and the Prison Policy Initiative have done a fantastic job researching this topic. Tracy included in one of her papers the following quote, “As former New York State legislator Daniel Feldman observed “When legislators cry ‘Lock ’em up!,’ they often mean ‘Lock ’em up in my district!.'”  This says it all.

Sharon Kyle


  1. says

    One more thing (from New Deal Democrat, in Bondad’s blog): “We now know just how significant the effect of gerrymandering was in the 2012 elections for the House of Representatives.

    candidates received a total of 53.95 million votes, or 50.26%.
    Republican candidates received a total of 53.40 million votes, or

    Despite this, the likely make-up of the next House of
    Representatives is going to be 200 Democrats (46%) and 235 Republicans
    (54%). “

  2. ronwf says

    Prisoners should be counted as residents of the State they are incarcerated in because that’s where they live! When they get out and move back to wherever they are from then let them be counted there. But it makes no sense to count someone who lives in one location as a resident of another location.

    Prisons are in rural areas because that’s where land is cheap and where there are fewer people to complain about a prison next door. It’s got nothing to do with worrying about the Census or representation in the House of Representatives.

  3. Ronald Riley says

    I have a radical proposal. Keep counting inmates for the place where they are incarcerated but let them vote!
    Two states already let inmates vote, Vermont and Maine.
    Some civic participation would do the inmates some good and help them reconnect with society by the time they get out.
    Let them vote, and then politicians will seriously reconsider before requesting a “population exchange” into their district.

  4. Tyrannus Evisceratus says

    Yeah Prisoners do reside in prisons and should be counted wherever the prison is located. Also the prisons are located in rural areas because you don’t build a prison on prime real estate.
    I can see the effect it has, but it isn’t racially motivated.

  5. says

    OMG!   Thanks for illustrating another nail in the democracy filled coffin.  The more I learn the more helpless I am.  No wonder the gop is undermining education for the 99%.  Feeling helpless makes us helpless to understand and to do.

    • says

      Don — I understand how overwhelming this can appear to be but we cannot allow them to take our power away. I will try to offer solutions in more of my articles. For example, give to organizations like the Prison Policy Initiave, or the Southern Policy Law Center

  6. delphi1 says

    This is amazing. Great insight into an issue of horrific proportion. As for the map (mentioned in one post I read) , a legend was not really necessary- its’ meaning was pretty transparent. Many Thanks, Professor Kyle.

  7. Francisca says

    Great article, but what is the point of the map? It has no legend without which it says nothing. This is what first attracted me to the article along with the title.

  8. Lee Wood says

    This article highllghts the modern 3/5ths compromise of counting disenfranchised prisoner slaves as residents of the plantations.

  9. sally says

    Bob, you are missing the point. Incarcerated people should be counted in the district where their primary residence is, not where the prison is.

    • Bob says

      Prisoners reside — in prisons. Allowing them to establish residence away from that, or at will, sounds like a recipe for another scam or fraud, selling their residence to the highest bidder. That will just be another embarrassment for the government.

      • says

        Most prisoners are processed through an agency like the United States Probation and Parole Office (even though there is currently no parole available and the title should be Supervised Release Office). The office interviews the inmate (or potential inmate-some are allowed to self report to an institution) and gathers data including a home address. If the inmate has a home address, I see nothing wrong with that inmate being counted as a resident of his or her home county at census time.

  10. Bob says

    Very good. Your argument almost makes sense, except that the reason prisons are in rural areas probably has more to do with money (it costs less to have them there) than a political agenda. So you want prisons in cities, where the land and other costs are higher? That doesn’t make a whole lot of sense.

    • says

      I doubt she wants to move the prisons, just the way the prisoners are counted at census time. Unless they are serving a life sentence, they are temporary residents of the prisons and have a permanent residence at home-at least most of them do. I was the chief federal defender for one district and know that most inmates have a home address.


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