Every day, the criminal justice system rips men and women out of Black and Latino districts and locks them away in far-flung places that bear little resemblance to their home neighborhoods. But no amount of distance can break the bonds of family and community. The physical absence of incarcerated residents does not remove them from the spirit of the community, nor does it lessen their investment in the wellbeing of their families and neighbors.
But according to the U.S. Census Bureau, for someone who is incarcerated, physical absence is all it takes to be politically erased from one’s home community.
Last year, the Bureau received 162 comments addressing the issue of where to count people who are imprisoned on Census day in 2020, 156 of which ― over 96% ― advocated for incarcerated people to be counted in their home communities. Nevertheless, the Bureau announced this June that it plans to continue to count people where they are detained on Census day. In response, LatinoJustice and numerous other advocates for racial justice and democracy weighed in to tell the Bureau that their decision is incorrect and that it needlessly exacerbates race and class marginalization.
LatinoJustice focused its 2015 letter primarily on the threat of prison gerrymandering—that is, the practice of diluting the political power of communities of color by counting incarcerated Black and Latino persons as “residents” of the legislative districts of the prisons where they are temporarily detained. Racial vote dilution is unlawful, and it is a logical consequence of the Bureau’s refusal to count incarcerated people in their home communities.
But the Bureau’s proposed rule doesn’t only threaten to entrench racially disparate outcomes; it also appears to apply racially disparate treatments. That is, the Bureau’s interpretation of the concept of “usual residence” varies substantially among the many categories of people who reside away from home. And, not surprisingly, the features that distinguish those categories appear to have more to do with race, wealth, and social status than with residency patterns.
For people in prison, the Bureau defines “usual residence” as “the place where a person lives and sleeps most of the time,” which leads them to conclude that people should be counted where they are imprisoned. But for practical purposes, “most of the time” is actually reduced to wherever one happens to be imprisoned on Census day.
The problem is that people who are incarcerated are constantly moved around. In New York, for example, in January, 2008, the median time that an incarcerated individual remained at a particular facility was only 7.1 months. In Georgia, the median is nine months. Moreover, most people are serving short sentences, and research shows that they are very likely to return to their home communities upon release. To insist that a person’s place of involuntary detention on one particular day must be his or her “usual residence” is simply illogical.
When contemplating populations outside the criminal justice system, the Bureau seems far less concerned with counting people where they are living and sleeping on Census day. Exceptions to that standard include boarding school students, members of Congress, deployed military personnel, visitors who have close ties to the place they are visiting yet are still counted at home, babies born on or before Census day who are counted where they will live and sleep, and truck drivers who sleep away from home most nights. For all these people, the Bureau appropriately adjusts the rules to accommodate unusual circumstances and count people where they should be counted—at home.
So why the rigidity in applying the “usual residence” standard to incarcerated people?
Any time we observe people in the criminal justice system receiving arbitrarily different treatment compared to other groups, we have to address the race and class implications, especially when there are serious consequences related to political power and representation.
We know that racial disparity is rampant at every stage of the criminal justice system. In 2010, Black Americans and Latinos made up less than one-third of the general United States population but composed almost 60% of the prison population. Non-Hispanic whites, who are around 64% of the total population, make up only 39% of the prison population. And a 2014 Prison Policy Initiative report found that the median annual pre-incarceration income of people in prison was only $19,185—41% less than non-incarcerated people of comparable ages. When the Census Bureau targets the incarcerated population for a particular treatment that is inconsistent with its treatment of other groups, it harms poor Black and Latino people.
By contrast, disproportionately white and wealthy populations, such as boarding school students and members of Congress, are not forced to be counted where they live and sleep most of the time. Boarding school students are counted at their parental homes even though they reside at school and even though they are much less likely to return home than incarcerated people, as almost all of them attend college upon graduation. Black and Latino students compose only 7% and 6% of the populations of the schools with the largest boarding enrollments in the country (compared to 13% and 16% representation, respectively, in the general population).
Members of Congress can choose to be counted in their home districts even if they live most of the time in Washington, D.C., and even though, like incarcerated people, they are serving limited terms. Congress is, unsurprisingly, 80% non-Hispanic white.
No one doubts that these racially and economically privileged populations should be counted at home. The value of their family and community connections is unquestioned and duly honored by the Bureau’s flexible interpretations of the usual residence rule.
In the case of incarcerated people, a refusal to make similar adjustments in recognition of the value of their family and community ties, usually to poor Black and Latino districts, further entrenches systemic racial inequality through the dilution of political power and representation. This is especially troubling given that boarding school students and members of Congress—unlike incarcerated people—live away from home by choice.
[W]e . . . implore you to review the glaring inconsistencies in the application of the usual residence rule with a critical awareness of the skewed racial and economic privileges of those who have the freedom to be counted in their home communities, despite the logical similarities they share with incarcerated people. . . . Quite simply, there is no principled reason to value the family and community ties of the home districts of prisoners any less than the populations we have identified here.
The Bureau must reconsider its decision and count incarcerated people in the home communities to which they will likely return and in which their families reside.
Black and Latino community ties matter.