When the ACLU Pasadena Foothills Chapter joined forces with the NAACP, LA Progressive and a host of other Southern California social justice focused organizations to sponsor a talk by former ACLU attorney, Michelle Alexander, author of, New Jim Crow: Mass Incarceration in the Age of Colorblindness I asked Ms. Alexander to give the audience her condensed version of the prison-based gerrymandering phenomenon.

Characterizing it as a modern-day 3/5ths Compromise, Alexander explained that in most states census residence rules require that incarcerated people be counted at their place of incarceration as opposed to their home address.

She went on to explain that the overwhelming majority of incarcerated people in the United States hail from the major metropolitan centers of this country while the prisons are typically built in non-urban or rural areas. This counting practice results in a shift in population from urban center to rural community thereby increasing the political clout of rural communities while decreasing the political clout of urban communities.

And, all the while, the incarcerated, almost without exception, cannot vote — which explains the comparison to the 3/5ths Compromise. The compromise was written into the Constitution in 1787 at the Philadelphia Convention and wasn’t replaced until the 14 Amendment was adopted in 1868. It stated:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The reason the compromise was written into the Constitution was to incentivize the South to adopt the Constitution. Because population drives the number of congressional representatives and the tax apportionment, slave states wanted their slaves counted as part of the population. The delegates from the North, which didn’t have as many slaves as the South, didn’t want the slaves counted at all so a compromise was made. Each slave would count as 3/5ths of a person for purposes of tabulating the state’s population and determining how much political power and what share of the federal tax revenue that state would be entitled to be apportioned.

In addressing the census residence rule and specifically prison-based gerrymandering, the NAACP Legal Defense Fund reports:

Over the last several decades, the percentage of Americans incarcerated in prisons has increased four-fold. Incarcerated persons are often held in areas that are geographically and demographically far removed from their home communities. For instance, although non-metropolitan counties contain only 20% of the national population, they host 60% of new prisons.

In addition, because Latinos and African Americans are incarcerated at three to seven times the rate of Whites, where incarcerated people are counted has tremendous implications for how African-American and Latino populations are reflected in the census, and, consequently, how these communities are impacted through redistricting.

Political districts are based on population size. The number of people in a geographical region determines the number of Congressional, state and local representatives. When prison-based gerrymandering is employed, district boundaries redrawn to align with census figures results in large portions of what would have been urban population being reapportioned to rural counties.

Because of this practice, urban communities, particularly urban communities of color stand to lose the most. Census figures help determine where government money will go to fund hospitals, school services, public housing, social services, food stamps and other programs. The census figures are also used to determine how many seats each state has in the U.S. House of Representatives. Prison-based gerrymandering may result in the loss of both federal dollars and political representation for districts that are already struggling.

This is not only a problem for California but for the rest of the nation as well. According to the Prison Policy Initiative, a non-profit, non-partisan organization that documents the impact of mass incarceration on individuals, communities, and the national welfare, the United States is on the verge of a national crisis, particularly in situations where the communities that “win” are predominantly white, and the communities that “lose” are predominantly minority.

The potential negative fallout of this practice is not limited to communities of color. This could have far reaching political consequences, with Democrats more at risk for getting the short end of the stick. Consider the national impact if Florida, for example counts its growing inmate population in the sparsely populated North Florida counties, where prisons have cropped up like mushrooms over the past decade.

The Prison Policy Initiative reports that Florida’s Gulf County has two new prisons accounting for a significant percentage of its 13,000 residents; a prison built in Gadsden County could help move state legislative boundaries that affect Tallahassee and other Big Bend counties. Opinions issued by Florida’s Attorney General in August, 2001, said county commissions and school boards must include prisoners when redistricting.

Florida’s 82,000 prison inmates may figure heavily in the state’s redrawing of political boundaries. According to the U.S. Department of Justice, at year end 2008, California had over 173,000 prison inmates. These two states give some insight into the breadth of this problem. Because the census data is updated every ten years, this issue comes to the fore once a decade. But its impact lingers.

There are multiple factors that explain the explosion of the prison industrial complex but one factor that is rarely addressed is the political incentive to drive criminal justice policy toward mass incarceration for purposes of shifting disenfranchised urban populations to rural communities.

Tracy Huling and the Prison Policy Initiative have done a fantastic job researching this topic. Tracy included in one of her papers the following quote, “As former New York State legislator Daniel Feldman observed “When legislators cry ‘Lock ’em up!,’ they often mean ‘Lock ’em up in my district!.'” This says it all.

Sharon Kyle