Political Prisoners in the United States? Depoliticizing our criminal system

 

Does the United States actually have political prisoners?

Green states do not disenfranchise. Yellow states only disenfranchise those who are actually in prison. Purple states also disenfranchise felons who are out on parole. Red states disenfranchise prisoners who are on parole or probation. Orange states restrict the rights of some to vote even after they have completed their sentences. (Source: The Sentencing Project)

Green states do not disenfranchise.
Yellow states only disenfranchise those who are actually in prison.
Purple states also disenfranchise felons who are out on parole.
Red states disenfranchise prisoners who are on parole or probation.
Orange states restrict the rights of some to vote even after they have completed their sentences.
(Source: The Sentencing Project)

Probably not by the strict definition of the term: people incarcerated for their political beliefs. But there are millions of American citizens in the criminal justice system who are pawns in our political system. The criminalization of an activity and the pursuit, arrest and incarceration of people engaged in those activities have political ramifications which, in turn, can tempt lawmakers to make decisions which favor their own political viewpoints.

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SCOTUS Upholds “No Representation Without Population” Rule

— by Anna Pycior and Peter Wagner

The U.S. Supreme Court today upheld the constitutionality of Maryland’s groundbreaking No Representation Without Population Act, which counts incarcerated people as residents of their legal home addresses for redistricting purposes. The 2010 law was a major civil rights victory that ended the distortions in fair representation caused by using incarcerated persons to pad the population counts of districts containing prisons.

The law upheld today is a state-based solution to the long-standing problem in the federal Census of counting incarcerated people as residents of the prison location, even though they cannot vote there and remain residents of their home communities for virtually all other legal purposes. The practice of prison-based gerrymandering particularly harms urban communities and communities of color that disproportionately contain the home residences of incarcerated persons. Other states have since passed similar laws, but the Maryland law was the only one to go to the Supreme Court.

“Today’s Supreme Court decision in Fletcher v. Lamone affirmed the constitutional ‘one person one vote’ foundation of our decade-old campaign to end prison-based gerrymandering,” said Peter Wagner, Executive Director of the Prison Policy Initiative and the nation’s leading expert on how the Census Bureau’s practice of counting incarcerated people as residents of the prison locations harms the democratic process.

The lawsuit was filed last November, and the civil rights community responded quickly to brief the lower court on the constitutionality of Maryland’s law. In an amicus brief, the Prison Policy Initiative and Dēmos, along with the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland and Somerset County Branch NAACP, and the fNAACP Legal Defense and Education Fund explained the basis and need for the landmark law. The lower court’s opinion, affirmed today, rejected the allegation that the law was somehow dilutive of minority voting rights, finding that the No Representation Without Population Act was an historic Maryland civil rights victory:

As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.

Brenda Wright, Vice President for Legal Strategies at Dēmos, hailed today’s ruling in Fletcher v. Lamone:

The Supreme Court’s ruling is a huge victory for the national campaign to end prison-based gerrymandering. This decision sets an important precedent that will encourage other states to reform their redistricting laws and end the distortion in fair representation caused by treating incarcerated persons as residents of prisons.

More after the jump.
Today’s decision in Fletcher v. Lamone constitutes the most significant court ruling to date on the factual and legal justification for states to reallocate incarcerated persons to their home residences for purposes of redistricting. The ruling upheld today noted that “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.'” It further noted that

These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts.

Today’s ruling by the U.S. Supreme Court affirming that Maryland’s law both meets constitutional requirements and was fairly implemented will hopefully encourage the Census Bureau to change its policy on where incarcerated people are counted in the 2020 Census.

The plaintiffs in Fletcher challenged Maryland’s right to correct where incarcerated people are counted for the purpose of drawing congressional districts. “Congressional districts are held to the highest standards to ensure population equality.” said Brenda Wright of Dēmos. “The Court’s decision that Maryland’s law satisfies the strict standards applicable to congressional districts clears the path for other states to pass similar laws at all levels of government.” New York, Delaware and California have already enacted similar legislation, and advocates are calling on the Census Bureau for a national solution. “Today’s ruling by the U.S. Supreme Court affirming that Maryland’s law both meets constitutional requirements and was fairly implemented will hopefully encourage the Census Bureau to change its policy on where incarcerated people are counted in the 2020 Census” said the Prison Policy Initiative’s Peter Wagner.

Prison-Based Gerrymandering in Wisconsin

–by Peter Wagner

This article was prepared on Monday. On Wednesday, the Assembly passed the plan and it is now on the Governor’s desk awaiting signature.

The Wisconsin legislature is rushing through a redistricting plan so they can lock in the maps before the scheduled recall elections can change who has the power to draw district lines. In that rush, prison-based gerrymandering is poised to have an even greater impact on state, county and municipal districts than it did a decade ago.

The Census Bureau counts Wisconsin prisoners as if they were residents of the communities where they are incarcerated, even though they can’t vote and remain legal residents of the places they lived prior to incarceration. Crediting thousands of people to other communities has staggering implications for Wisconsin’s democracy, which uses the Census to apportion political power on the basis of equally-sized state and county legislative districts.

Wisconsin’s 53rd Assembly district has the highest concentration of prisons in the state. The 53rd District claims 5,583 incarcerated people as residents of the district, even though state law says that incarcerated people remain residents of their homes. All districts send some people to prison, although some districts some districts send more than others. But not all districts have prisons, and concentrating 23,000 prisoners in a handful of districts enhances the weight of a vote cast in those districts and dilutes all votes cast elsewhere.

More after the jump.
In Wisconsin, this impact is largest in District 53, where without using prison populations as padding, the district would be 10% below the required size. This gives every 90 residents of the 53rd district the same influence as 100 residents of any other district in the state.

If that seems insignificant, consider that the Supreme Court allows districts to have populations that are 5% too large or small if the state can protect some other legitimate state interest by doing so. The federal judges who have for decades drawn Wisconsin’s state legislative districts have had an even higher standard, allowing only a 1% deviation from strict population equality. The Republican majority of the legislature which drew the new districts took an even higher standard in the Assembly, drawing districts that are, by Census counts, no more than 0.4% too large or small.

The state’s efforts to carefully draw districts that give each district the same population and the same political influence is clearly overshadowed by the decision to use the Census Bureau’s data that credited incarcerated people to the wrong location when drawing districts, and created one of the most distorted state legislative districts in the county. The systematic bias introduced by drawing districts based on Census Bureau prison counts becomes clear when you look in detail at District 53:

District 53 purports to have a large African-American population, larger than 74 other districts. But of the 2,784 African-Americans in the district, all but 590 are incarcerated. The day the people incarcerated in the district are allowed to vote again, they will be on a bus, heading back to their home district. The 53rd District is claiming populations that are not a part of this district and never will be.

The state Assembly is not the only part of Wisconsin to raise the ante on prison-based gerrymandering and draw districts more distorted than they did a decade ago. In our previous research, we found some of the most dramatic examples of prison-based gerrymandering in the country in Wisconsin cities and counties. With two notable exceptions, counties appear to have been unable or unwilling to find a solution to competing state laws that indirectly require them to use the unadjusted Census numbers and engage in prison-based gerrymandering.

The two exceptions are Dodge County, and the City of Waupun. These communities did something clever: they split each large prison between 2 or 3 neighboring districts. Those districts still get credited with an incarcerated population that actually resides somewhere else, but the size of the vote enhancement in any individual district is smaller. And by extension, this reduces the extent to which votes are diluted in other Dodge County or City of Waupun districts.

With Dodge County and the City of Waupun finding solutions, albeit partial ones, the mantle for the most dramatic examples of prison-based gerrymandering is likely going to fall to Chippewa, Juneau, and Waushara counties, all of which saw new prisons built or expanded over the last decade, and all of which appear to be drawing individual county districts that are more than 50% incarcerated. In each of these counties, if you live next to the prisons, you’ll get twice the influence over the future of our county as residents who live elsewhere. That’s not fair. It likely violates the federal constitution’s guarantee of equal representation, and it certainly doesn’t make any sense.

We concede — when fairness and logic aren’t enough to avoid prison-based gerrymandering — that it is technically possible to draw a district that is half incarcerated. One town in Iowa had a district that was 96% incarcerated, until citizens intervened. So what are we watching for at the Prison Policy Initiative headquarters? We’re waiting to see how the cities of New Lisbon and Stanley draw their city districts. There, unless they take action, they’ll be faced with drawing districts that are more than 100% incarcerated. This impossibility could produce some of the most dramatic examples of prison-based gerrymandering in the country. Will those cities follow the state legislature’s blind rush into prison-based gerrymandering and end up drawing one or more City Council districts with no voters? Stay tuned.

Wisconsin cities and counties where relying on the Census for redistricting creates serious problems for democracy after the 2000 Census. (We also looked at Oshkosh City in Winnebago Co., Fond du Lac City in Fond Du Lac Co., Allouez Village in Brown Co., and Sturtevant Village in Racine Co., but these cities and villages are not affected because their local government is elected at large rather than from districts. Marquette County’s districts were not affected by the prisoner miscount because the county and state concluded that the census erred in placing the Federal Oxford prison in Marquette, when it is actually located in Adams County.) This table is updated from Importing Constituents: Prisoners and Political Clout in Wisconsin with the downsized districts in Fond du Lac County.

County District Percent of district’s population that is in prison Resulting Vote Distortion
Adams 5 & 6 64% 9 votes here = 25 elsewhere
Brown 14 22% 39 votes here = 50 elsewhere
Columbia 8 47% 27 votes here = 50 elsewhere
Dane 33 6% 47 votes here = 50 elsewhere
Dodge 29 53% 47 votes here = 100 elsewhere
Dodge 31 59% 41 votes here = 100 elsewhere
Dodge 35 10% 9 votes here = 10 elsewhere
Dodge 8 54% 23 votes here = 50 elsewhere
Fond du Lac 18 18% 82 votes here = 100 elsewhere
Jackson 10, 11, 12 and 19 24% 19 votes here = 25 elsewhere
Racine 13 17% 83 votes here =  100 elsewhere
Sheboygan  22 6% 47 votes here = 50 elsewhere
Sheboygan  32 25% 3 votes here = 4 elsewhere
Winnebago  12 42% 58 votes here = 100 elsewhere
Winnebago  30 16% 21 votes here = 25 elsewhere
City District
Fitchburg City 4 14% 43 votes here = 50 elsewhere
Franklin City 1 38% 31 votes here = 50 elsewhere
Waupun City 2 63% 37 votes here = 100 elsewhere
Waupun City 3 79% 21 votes here = 100 elsewhere