Article: The Census and Democracy: Maryland Fixes a Major Error

In the wake of the 2010 Census, Maryland passed a law yesterday that fixes a major problem. Maryland will now count people in prison where they actually live, not where they are confined. This first-in-the-nation law will improve the fairness and accuracy of Census data used to draw legislative boundaries.

18 percent of the population credited to Maryland House of Delegates District 2B (near Hagerstown) is actually incarcerated people shipped in from other parts of the state. In Somerset County, 64 percent of the population in the First Commission District is a large prison, giving each resident in that district nearly three times as much influence as residents in other districts. People in prison are generally not permitted to vote, but their bodies still count for purposes of legislative apportionment.

The problem goes beyond Maryland. The official rule of the U.S. Census Bureau is to count people where they are confined even though most people sent to prison were convicted of relatively minor crimes and will serve less than three years, returning to their actual homes long before the next decennial census. The misplaced headcount distorts democracy.

The effect has racial and ethnic consequences as well. More people in prison come from urban, minority, Democratic-leaning districts. They are sent to prisons in rural, white, Republican-leaning districts. It's not quite a return to the three-fifths clause, but the electoral impact leans in that direction. Nationwide, more than ten percent (pdf, table 19) of African American men in their twenties and thirties wakes up in custody in any given day. When I ran the numbers in 2005, the figure in Baltimore was one in five. These numbers are too high for all kinds of reasons but the impact on redistricting carves it into the bones of our democracy.

Still, the Census Bureau has stubbornly refused to change its rules and count people in prison in the location that they come from and return to. It has conceded for the 2010 census to release its micro data early enough that states and counties who choose to can reassess prison jurisdictions in time for reapportionment. But Maryland sets a new standard by taking matters into its own hands. Technical matters of implementation will need to be worked out (they have ten years!) but the law states a clear legislative intent. Constituents are not exportable commodities.

Credit where due: Peter Wagner and the Prison Policy Initiative have been advocating for these changes for years. The New York Times has editorialized against it. And my own personal brag: I helped uncover this issue ten years ago, and published the first mainstream documentation in the Pace Law Review.

The governor and the legislature in Maryland just plain got it right. If enough other states follow their lead, the Census Bureau will have no choice but to do it right next time.

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This piece originally appeared at the Campaign for America's Future.