Counted out twice - power, representation & the "usual residence rule" in the enumeration of prisoners: a state-based approach to correcting flawed census data.

AuthorHamsher, David

INTRODUCTION

The American incarcerated population, 2,212,475 persons strong, (1) is larger than the population of the fourth-largest city in the United States, (2) commands a greater population than fifteen individual states, (3) and contains more people than the three smallest states combined. (4) If the incarcerated population of the United States were a state of its own, it would qualify for five Electoral College votes. (5) As the United States emerges from two consecutive close national elections featuring razor-thin margins of victory, commentators have noted that felon disenfranchisement may have influenced the outcome of these elections. (6)

Lurking below the surface of felon disenfranchisement analysis lays a nascent discourse on the effect of mass incarceration on the complicated world of state and federal legislative apportionment. Specifically, a small but growing number of journalists, legal and academic scholars, (7) and politicians have started to take note of the profound effect of the U.S. Census Bureau's "usual residence rule"--the method by which the Census Bureau determines where to count people--and its application to those behind bars. (8) A November 2004 New York Times editorial, for example, called for a change in the way prisoners are counted by the U.S. Census Bureau, noting that in the past year at least three major reports have made the same recommendation. (9) Each of these reports outlines just how significantly the application of this 200-year-old method of population enumeration, the "usual residence rule," affects the distribution of representative power. (10)

Ever since the first U.S. Census in 1790, the Census Bureau has used the concept of "usual residence" to determine who lives in which state. (11) The Census Bureau defines "usual residence" as "the place where the person lives and sleeps most of the time. This place is not necessarily the same as the person's voting residence or legal residence." (12) This particular enumeration method comes neither from the U.S. Constitution nor from a federal statute, but rather from an administrative determination that such a rule would be an effective means of enumeration. (13)

While the fundamental constitutional mandate of the Census Bureau--to count the number of people in each state in order to apportion Representatives of the United States amongst the several States (14)--has not changed since 1787, the ancillary use of the collected data has dramatically increased in importance. (15) Today, Census Bureau data is used extensively, not only to apportion population to both state and federal legislative districts, but also for the annual allocation of more than $140 billion in formula-based federal grants to state and local jurisdictions. (16) With such widespread vital uses of Census data, one can easily see how imperative it is that the Census Bureau counts accurately, counts fairly, and counts people in the right place.

Generally, the "usual residence rule" works well; people are counted at their homes--normally where they sleep most of the time, vote, and work. However, when this policy is applied to prisoners who spend a generally short period of time behind bars in prisons located far from their true homes, distortions arise. (17)

When the Census Bureau counts prisoners in the decennial census, it applies the "usual residence rule," and counts prisoners as residents of the prison in which they eat and sleep during the period of their incarceration. (18) However, in most states the prisoners legally reside in the community in which they were arrested. (19) The prisoners' pre-incarceration community is normally the community in which they would use the services of their political representatives and where they would vote (were they able). (20) Prior to 1970, this was not a significant problem, as the number of people behind bars was generally stable and not as significant as it is today. (21) However, since 1970, the U.S prison population has grown more than 600%, and continues its torrid growth. (22) Much of the growth in prison facilities has been in rural areas, while the majority of inmates come from urban areas. (23) Thus, an increasing number of people are counted by the Census Bureau as residents of communities that do not reflect their true, legal homes. As a result, a smaller permanent resident population in the rural, prisoner-hosting communities elects representatives than in those urban communities that tend to export prisoners. This means that prisoner-exporting communities experience a dilution of their relative voting power, while prisoner-importing communities experience a corresponding strengthening of their relative voting power.

For example, New York City produces nearly 66% of all New York State prisoners. (24) However, more than 91% of prisoners are incarcerated outside of New York City. (25) Thus, when the Census Bureau applies the "usual residence rule" to prisoners in New York, 91% of the prisoners from New York City are counted as residents outside of New York City, despite the fact that they legally remain New York City residents. (26) As a result, the interests of rural, prisoner-hosting communities in New York are overrepresented, and the interests of prisoner-exporting communities are underrepresented in the state and federal government.

While there have been numerous attempts to modify the implementation of the "usual residence rule" from statehouses to the United States Congress, these efforts have thus far been unsuccessful. (27) These efforts, however, continue to gain momentum.

By examining the causes and effects of prison expansion, the U.S. Census Bureau enumeration policies, and the relevant case law regarding state and federal legislative apportionment, this comment will evaluate various solutions to this growing problem. In particular, this comment will examine the legality of state based adjustments to Census data which aim to correct the flaws that the "usual residence rule" creates when applied to America's swollen prison population.

One can see the effects of the Census Bureau's "usual residence rule" on prison populations when examining every state. However, while looking at the problem from the perspective of any individual state, as well as from a national legal and policy perspective, this comment will focus on the causes, effects, and solutions to the problem caused by the "usual residence rule" in Illinois. Beyond being the home of this journal, Illinois proves a useful case study for a number of reasons. First, Illinois has one large city, Chicago, which exports a large number of prisoners to geographically distant prisons. (28) As a result, one can clearly see the effects of the Census Bureau's prisoner enumeration method in Illinois. Second, prison growth in Illinois has largely mirrored the growth seen throughout the United States. (29) Finally, legislation of the very type examined by this comment has been introduced in the Illinois General Assembly. (30)

Part I will present background on the census and the "usual residence rule," including, in Part I.A, an historical and modern background on the role and legal directives of the U.S. Census Bureau. In Part I.B, an analysis of how the Census Bureau's enumeration policy affects representation will be presented.

Part II will more exhaustively examine the scope of the problem. First, in Part II.A, both national and Illinois-based analyses of the growth of prison population and prison facilities will be undertaken. In Part II.B, the effect of the Census Bureau's "usual residence rule" upon legislative redistricting and population-based funding will be examined.

Part III will examine the relevant case material on the subject. Since the seminal cases of Reynolds v. Sims (31) and Wesberry v. Sanders, (32) there have been hundreds of cases which have clarified the judicially imposed legislative apportionment mantra--one person, one vote. The cases will be examined by first looking at relevant federal Congressional reapportionment cases in Part III.A and relevant state legislative reapportionment cases in Part III.B. Additionally, Part III.C will examine cases which have attempted judicially to alter Census Bureau enumeration procedures.

Part IV will examine the efficacy and legality of various census adjustment options potentially available to any individual state. Further, Part IV will argue that under guidance offered in Reynolds, Wesberry and their progeny a state may take back the reins from a recalcitrant Census Bureau to correct the inequities created by the "usual residence rule."

Finally, in Part V, this comment will argue that the Census Bureau's use of the "usual residence rule" to enumerate prisoners creates striking inequities and that in the absence of federal action state legislatures must make a bold step to ensure that we are all counted accurately, counted fairly, and counted in the right place.

  1. COUNTING PRISONERS: AN INTRODUCTION TO HOW PRISON TOWNS REAP LEGISLATIVE POWER FROM THE UNITED STATES' MASSIVE PRISON POPULATION

    1. THE INTRICACIES OF ENUMERATION: HOW THE CENSUS BUREAU FULFILLS ITS CONSTITUTIONAL MANDATE

      At the Constitutional Convention in 1787, a bitter dispute arose that nearly ended the United States of America before it began. (33) Some members of the Convention advocated a system of government whereby each state would have an equal number of votes in Congress, while others were adamant that states with greater population should be afforded greater power. (34) Eventually, Benjamin Franklin led the delegates to the Great Compromise--a system of governance whereby one house of the federal legislature, the House of Representatives, would be comprised of a proportional number of Representatives from each state based on the states' relative populations, while another legislative house, the Senate, would be comprised of an equal number of Senators from each state. (35) The resultant...

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