It’s Time for the Census Bureau to Change the Census Residence Rules

By Kathleen Malloy

Civil rights groups have long advocated for the U.S. Census Bureau to count incarcerated people at their home addresses in the decennial census, rather than the county where the prison is located. The current rules only exacerbate disparities in resources, funding, and political power — and as we gear up for the 2030 Census, the time is now to rectify this distortion of democracy.

With the completion of the 2020 count, stakeholders, policymakers, and advocates have now turned to sorting through the 2020 Census data. These data represent far more than measures of population: They will determine community transportation options, job opportunities, funding for schools and hospitals, and so much more. Census data can create or hinder opportunity in communities — and for too long, that has been the case. Historically undercounted population groups, such as low-income households and communities of color, continue to be at greater risk of being missed in the once-in-a-decade census and consequently lose out on political power and vital public resources and business investment in their communities.

According to the Census Bureau’s 2020 Census Residence Criteria and Residence Situations (residence rules), people are counted where they “live and sleep most of the time.” For the more than 2 million people currently incarcerated in the United States, this means being counted away from their home communities. Data from the decennial census are used for 10 years — most notably as the baseline for annual population estimates — but the average time people spend in prison is 2.6 years. That means many people who were incarcerated continue to be counted where they were in prison long after they have returned home. Counting individuals who were incarcerated at a prison or jail during a decennial count can mask a community’s true size. For example, 60 percent of people in prison in Illinois are from Cook County, yet 99 percent of them are counted outside of the county in the census. The 2000 Census counted only 17 percent of Maryland’s incarcerated population in Baltimore —- even though 68 percent of the state’s incarcerated population called Baltimore home.

Inaccurate demographic pictures have lasting implications. The Census Bureau’s residence guidelines contribute to this miscount, known as “prison gerrymandering,” as districts with prison populations gain political representation from the count of incarcerated people — who, in 48 states, cannot vote — while the home communities of people in prison lose political representation. Local prison populations affect redistricting and reapportionment data by transferring political power away from communities that incarcerated individuals call home to areas where prisons are located. Political districts like these are found across the United States. In Juneau County, Wisc., people in prison account for 80 percent of the entire population of one county district. In Rhode Island, 16 percent of one state legislative district is composed of people in prison, even though only four percent are originally from the district; and in Texas, 12 percent of a rural state legislative district is composed of people in prison.

Just as the census residence rules governing incarcerated people transfer political power from one community to another, they also siphon away resources and funding from communities whose populations have been displaced by incarceration. Businesses and governments alike depend on census data to determine where funding and investments should go. For example, American Rescue Plan funding — which supported various programs such as community violence intervention and behavioral health programs — used census data to allocate funds and support communities during the pandemic. However, because the census fails to fully capture the true size of many communities, the data also fail to reflect their true needs, resulting in under-investment that affects housing opportunities, health care access, transportation options, and more.

Census residence rules for incarcerated populations also exacerbate racial disparities in both political power and resource allocation. Since 1970, the U.S. incarcerated population has increased by 700 percent. Though African Americans and Hispanics make up 32 percent of the U.S. population, a disproportionate 56 percent of the U.S. incarcerated population is represented by African Americans and Hispanics due to the systemic racism that pervades the criminal-legal system and the over-policing and criminalization of communities of color. As a result, the majority of people removed from their home community population counts are from Black and Brown communities, which are already historically undercounted in the decennial census. For example, 77 percent of people in New York state prisons are Black or Latino, but 98 percent of New York prisons are in disproportionately White state senate districts that benefit from increased political power, business investment, and government programs and services at the expense of communities most harmed by mass incarceration. 

The Leadership Conference on Civil and Human Rights and other civil rights organizations have long advocated for the Census Bureau to remedy disparities created by the residence rules. In 2016, The Leadership Conference and a coalition of 40 civil rights, faith, and economic justice groups criticized the Census Bureau for failing to update its residence rules. The Census Bureau considered changing the residence guidelines for the 2020 Census to count people in their home community rather than where they are incarcerated. In response to proposed 2020 Census residence rules, 96 percent of public comments supported counting people at their home address rather than where they are incarcerated. However, when it issued the final 2020 Census Residence Criteria in 2018, the Census Bureau did not change the residence rules to reflect public opinion.

In 2019, The Leadership Conference supported a provision in the For the People Act that would have ended the practice of prison gerrymandering. Several Leadership Conference coalition members — including the Prison Policy Initiative, American Civil Liberties Union, NAACP Legal Defense and Educational Fund, Common Cause, and the Brennan Center for Justice have also continued to advocate for the Census Bureau to count incarcerated people in their home communities.

Some states have answered the call from advocates. California, Colorado, Connecticut, Delaware, Nevada, New Jersey, Virginia, and Washington state ended prison gerrymandering in time for the 2020 Census, and Illinois enacted a law that will count incarcerated people at home for redistricting purposes beginning with the 2030 Census redistricting cycle. The Pennsylvania Redistricting Commission has committed to including incarcerated people in their home communities, and Rhode Island’s redistricting commission did the same this year. Additionally, more than 200 local jurisdictions mandate that people who have been incarcerated be counted as residents of their home communities for state legislative redistricting purposes. 

To help states carry out these laws, the Census Bureau now offers a data product that allows states to reallocate incarcerated populations to their home addresses. However, this is a retroactive fix that states must choose to adopt if they want to avoid prison gerrymandering. While state and local laws and policies requiring a count of people at home can alleviate harms caused by prison gerrymandering in some places, the Census Bureau’s residence rule prevents the problem from being eliminated for all communities. So long as the Census Bureau counts incarcerated people in prisons and jails rather than in their home communities, the data will continue to deflate population estimates in some places unfairly and deprive those communities of vital resources and funding.

Some members of Congress have proposed legislation that requires the Census Bureau to revise its residence rules governing where incarcerated people are counted. As noted above, the For the People Act, which failed to pass the Senate, attempted to do this. Reps. Deborah Ross (D. N.C.) and Mark Pocan (D. Wisc.) recently introduced the End Prison Gerrymandering Act, which would require the Census Bureau to count people in prisons and jails at their home addresses.

To achieve racial and resource equity, the Census Bureau must embrace these changes and update its residence guidelines to count people as members of the communities where they live rather than where they are incarcerated. Ending prison gerrymandering is one step toward providing communities the resources and representation they need to ensure health, safety, and opportunity for everyone.

Kathleen Malloy is the census and data equity program assistant at The Leadership Conference on Civil and Human Rights.