The U.S. Census Bureau has received more than 150 comments in the last year asking it to change how it counts prisoners for the 2020 census.
Despite that, the bureau plans to stick to its 2010 method — listing each prisoner’s address as the location where they are incarcerated, according to a notice with the proposed guidelines published in the Federal Register last week. The Census Bureau received only six comments in favor of the 2010 method.
Some criminal justice groups said counting prison populations at the prison harms redistricting, because rural areas with state or federal prisons sometimes look like they have larger populations when using the census data.
“You’re inflating your numbers and creating a district based on numbers that really don’t exist,” said Jesselyn McCurdy, deputy director of the Washington Legislative Office of American Civil Liberties Union.
Recent court cases related to redistricting in Cranston, Rhode Island, and Jefferson County, Florida, have forced those towns to redraw lines after they used census data to determine population. The problem in both cases was the inmate population.
Before the Rhode Island lawsuit, 25 percent of the population in Ward 6 in the city of Cranston were inmates, according to an American Civil Liberties Union press release.
In another example, one comment submitted to the Census Bureau and provided to the Prison Policy Initiative highlights the problem in a rural county — Morgan County, Tennessee.
The counting method resulted in “severe malapportionment” for redistricting there because the district that holds the prison would have more prisoners than residents, according to the comment.
Morgan County Commissioner Jerry Zorsch, who submitted the comment, also notes that counting prisoners’ addresses as the prison does not align with his state’s residency rules.
According to the Tennessee rules, “the residence of a person is the place where the person’s habitation is fixed and is where, during periods of absence, the person definitely intends to return,” he wrote in the letter.
“Now, while I’m sure that a few of our guests at the gray bar hotel will return, (recidivism is a terrible problem in this country),” Zorsch writes. “I can pretty much guarantee that there isn’t any one of them that ‘definitely intends to return.’”
He also mentions a part of the rules that call for “intent to remain in the new location permanently.”
“These men have no intention of staying in our fair county one second longer than they have to,” Zorsch writes. “If not for the barbed wire and armed guards that place would empty out faster than the county courthouse at quitting time on a Friday afternoon.”
If states want prisoners to be counted at their home addresses for their purposes, the notice says the Census Bureau plans to offer a new product with supplemental information on request.
Opting-in would not change the official decennial census counts, according to the notice.
“That’s not enough,” said Peter Wagner, executive director of the nonprofit Prison Policy Initiative. “The only organization that can solve this problem nationally is the Census Bureau.”
Some states may not even be able to opt-in. For example, the Massachusetts legislature sent a comment to the Census Bureau asking that it change the method because its constitution requires redistricting to be based on federal census data.
Both Maryland and New York have reallocated prison populations before redistricting, said Marc Perry, assistant division chief for the Census Bureau’s population division. And four states — California, Delaware, Maryland and New York — plan to reallocate prisoners after the 2020 census.
The way that some other populations are counted, however, would be changed for the 2020 census. Military personnel temporarily deployed overseas, for example, would be counted at their usual residence in the U.S. for the 2020 census. Before they were only counted in a state count for apportionment purposes for the House of Representatives.
In a statement, the Prison Policy Initiative said the Census Bureau “made these changes even though there were far fewer public comments identifying these issues as causing the magnitude of problems that the public commentary on the prison miscount highlighted.”
When asked about the rationale for the decision, Census’ Perry said, “Historically, people in correctional facilities on Census Day have been counted at the facility. For 2020, we propose to continue counting prisoners at the facility.”
The bureau will continue to take comments on the proposed guidelines until Aug. 1.
Correction: July 7, 2016
An earlier version of this story misstated the location of a lawsuit. Before the Rhode Island lawsuit, 25 percent of the population in Ward 6 in the city of Cranston were inmates, according to an American Civil Liberties Union press release.