Relates to the collection of census data

Summary of provisions

Section 1 sets forth the legislative intent for the act.

Section 2 amends section 71 of the Corrections Law to require that in each year that the Federal Decennial Census is taken that the Department of Correctional Services shall, by July 1, provide the Legislative Task Force on Demographic Research and Reapportionment with the residential address prior to incarceration for each incarcerated person for whom the Department of Correctional Services provided information to the United States Census Bureau.

Section 3 amends the section 83-m of the Legislative Law to require the Legislative Task Force on Demographic Research and Reapportionment for the purposes of the amended data set it develops, to correct the residential allocation of incarcerated persons such that incarcerated persons are reflected not within the census block of the correctional facility but rather, where possible, in the census block of their residential address prior to incarceration. This section requires that such amended data set be used for the drawing of Senate and Assembly districts.

Section 4 amends d1e Municipal Home Rule law to require municipalities, for the purposes of redistricting, to reflect incarcerated persons not within the census block of the correctional facility but rather, where possible, in the census block of their residential address prior to incarceration.

Section 5 sets forth a severability provision.

Section 6 provides that the act is effective immediately.

Justification

Currently, the United States Bureau of the Census includes everyone housed in federal, state, and local correctional facilities in its count of the general population of d1e census block that contains the facility. Until the Census Bureau provides the information necessary to count people in prison at their address prior to incarceration for d1e purpose of redistricting, the issue must be addressed at the

state level. With this legislation, New York joins the ranks of states developing practical and effective solutions to count people in prison at their addresses prior to incarceration for the purpose of redistricting.

This legislation counts people in prison at their address prior to incarceration only for the drawing of legislative districts. The Census Bureau will continue to count the prison population in the district where the prison is located. Since this legislation in no way alters the underlying census data, it has no impact on funding formulas and allocations given to the state or distributed within the state that are based on federal census data.

States and localities are addressing this issue because of the distorting effect that counting people in prison in the prison district has on the drawing of legislative boundaries. Moreover, the prison population is distinguishable from other populations, such as students and those serving in the military, that are counted by the Census Bureau in what are referred to as "Group Quarters."1

People who have been convicted of a felony and are incarcerated or on parole cannot vote in New York State, either in the district where the prison is located or using an absentee ballot at their address prior to incarceration. In contrast, college students and military personnel can participate in elections and register to vote from either their local residence or by submitting an absentee ballot. In addition, people in prison do not interact with or benefit from the district where the prison is based. People in prison do not use the schools, hospitals, or other public facilities in the community where the prison is based. The costs of the prisons are not borne by the community where the prison is located, but rather by all New York State taxpayers. Costs that are not covered by the State, such as phone expenses and commissary bills, are paid for by the families of people in prison.

When it comes to the amount of time a person in prison spends in anyone prison location, of the 15,811 new court commitments to DOCS custody in 2008,60% had sentences of 3 years or less. Less than 6% had sentences of 10 years or more, and only a tiny fraction - 15 people - are serving sentences for Life Without Parole. Out of the entire DOCS population of nearly 58,000 inmates, only 202 are in for Life Without Parole. For those who do remain in custody for years, most move frequently between facilities and jurisdictions.2

Federal Law The state's current reliance on the Census Bureau's flawed prison counts when drawing legislative districts, violates federal law in two ways: (1) it dilutes minority voting strength in violation of Section 2 of the Voting Rights Act of 1965; and (2) it violates the one person, one vote principle of the Equal protection Clause, which requires voting districts to have equal numbers of residents

(because people in prison are not residents of the districts where they are incarcerated and counted).

In 1964's land mark ruling, Reynolds v. Sims, 377 U.S. 533 (1964), the Supreme Court held that state legislative districts must represent a roughly equal number of people. Affirming the "one person, one vote" principle, Chief Justice Warren minced no words in his celebrated opinion, writing, "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." The Census Bureau's current methodology undermines the "one person, one vote" Principle supported by prevailing public values as well as constitutional jurisprudence.

State Law The Census Bureau's current methodology also violates New York State law in two ways: (1) it runs afoul of the New York State Constitution which states in Article 2, section 4 that for the purpose of voting, "no person shall he deemed to have gained or lost a residence...while confined in any public prison"; and (2) similarly, subdivision 1 of section 5-104 of the New York Election Law states that "For the purpose of registering and voting "no person shall be deemed to have gained or lost a residence...while confined in any public prison. In addition, the 1894 New York Court of Appeals decision in People v Cady, 37 N.E. 673 (N.Y. 1894), stated that people in prison could not be considered residents of the prison where they are incarcerated.

Based on federal and state law, people in prison therefore remain legal residents of their address prior to incarceration. Unfortunately, the current Census Bureau's methodology disregards this, instead counting a significant proportion of the national population in the wrong place. Crediting the population of prisoners to the Census block where they are temporarily and involuntarily held creates electoral inequities at all levels of government.

Local Governments Counting people in prison in the prison district, most significant impacts vote dilution in rural communities as most counties, cities, and towns use federal census data to draw their local legislative district and ward boundaries. St. Lawrence County, in northern New York, drew legislative districts with Census 2000 data that included more than 3,000 people in three correctional facilities as if they were actual residents of two small towns, Ogdensburg and Gouverneur. The increased voting power of Ogdensburg and Gouverneur residents diluted the votes in the many St. Lawrence County residents who do not live near those prisons. This inequity created a long-running and disruptive controversy in St. Lawrence, and a petition opposing the unequal representation gathered more than 2,000 signatures.3

County legislators and supervisors in 1.3 counties in New York have subtracted the prison population from the official count prior to drawing county legislative districts or designing weighted voting systems to ensure equal representation and avoid creating a legislative districts that have more people in prison than actual residents. The New York counties that have corrected the census data to remove people in prison before redistricting include: Cayuga, Chemung, Clinton, Dutchess, Essex, Franklin, Greene, Orange, Orleans, Schoharie, Sullivan, Washington, and Wyoming.

In Essex County's detailed justification for tile removal of people in prison, me County offered me following explanation:

"Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in me life of Essex County and do not affect me social and economic character of me towns.... The inclusion of these federal and state correctional facility inmates unfairly dilutes tile votes or voting weight of persons residing in other towns within Essex County..."4

These 13 counties in New York have joined municipalities across me country to address, on me local level, me redistricting inequities mat result from relying on me Census Bureau's counting of people in prison. This removal of people in prison on tile local level does not put incarcerated people back in their census blocks prior to incarceration. From tile perspective of these rural counties, however, counting people at home and not counting them at all results in the same outcome--either way, me data may use for county districts does not contain the prison populations.

Other States About a 100 local governments exclude, for redistricting purposes, the Census Bureau's prison counts. A few states (Colorado, Mississippi, New Jersey and Virginia) require or encourage local governments to do so, but the majority of these counties do so on their own.5

As awareness in me issue of prison-based gerrymandering has grown, so too has interest in state level solutions. Similar legislation has been introduced recently in Connecticut, Florida, Illinois, Oregon, Rhode Island, and Wisconsin mat would determine me home addresses of incarcerated people and count them at their addresses prior to incarceration. During the 2010 legislative session, similar legislation was signed into law in Maryland passed me House in Delaware.6

Legislative history

New Bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately.

Footnotes

1 For more details on who is counted as a part of Group Quarters, see: U.S. Department of Commerce, Bureau of the Census (2009). 2010 Census Ouestionnaire Reference Book. Washington, D.C. http://2010.census.gov/partners/pdf/langfiles/qrb English.pdf

2 New York Department of Correctional Services(2009). Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2009. Albany, NY. http://www.docs.state.ny.us/Research/Reports/2009/UnderCustody Report 2009.pdf

3 Prison Policy Initiative (2007). Phantom constituents in the Empire State: How outdated Census Bureau methodology burdens New York counties. http://www.prisoncrsofthecensus.org/nycouteies/

4 More information regarding the Essex County Local Law No.1 2003 is available at the Prison Policy Initiative website. http://www.prisonersofthecensus.org/nycounties/essex.html

5 Colo.Rev.Stat.sec.30-10-306.7(5)(a);Miss.Code Section 47-1-63; N.J.S.A.18A:13-8; Va. Code Ann, §24.2304.1. The Prison Policy Initiative tracks legislation of this type on a frequently updated page at: http://www.prisonersofthecensus.org/legislation.html.

6 S.B. Bill 1386, 112th Regular Session (Fla, 2010); H.B. 4650, 96th General Assembly (Ill.2009); S.B. 400, 427th Session (MD. 2010), A. Res, 63, 99th Session (Wis.2009). The Prison Policy Initiative tracks legislation of this type on a frequently updated page at: http://http://vww.prisonersofthecensus.org/legislation.html.