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In late March, Colorado Gov. Jared Polis signed two bills into law that criminal justice reform advocates praised: He repealed the death sentence in the state (and commuted the sentences of three men on death row), and he ended the practice of prison-based gerrymandering.
You’ve likely heard of gerrymandering—the practice of dividing “(a state, school district, etc.) into political units that give one group an unfair advantage,” per the dictionary. Prison gerrymandering is the act of counting inmates as residents where they are incarcerated rather than the communities where they are from.
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While the U.S. Census Bureau tallies inmates where they are incarcerated, there’s been a push in some states to stop that practice. Advocates say it unfairly amplifies the political clout of mostly rural, primarily white districts by inflating their numbers with an incarcerated population that is disproportionately Latino and black and from more urban areas—and cannot vote—thereby skewing the demographic and socioeconomic profiles of those areas.
Why does that matter? A quick civics recap: Every 10 years, Census data is used to redraw our legislative and congressional districts as well as determine how many representatives a state should have. (Currently, Colorado has 65 state representatives, each representing an average of 77,372 residents, and 35 state senators that serve an average of 143,691 people.)
The Colorado Accurate Residence For Redistricting Act is “a victory for fair maps in Colorado,” Patrick Potyondy, policy manager for Colorado Common Cause, a nonpartisan nonprofit focused on fair and accountable political representation that supported the legislation, wrote in an email. “Under this reform, no legislator or congressional representative of either party would benefit politically any longer because of the state prison in their district that bloats their local population,” he wrote. “The bill removes a perverse incentive for elected officials in the legislature or in Congress to want more people imprisoned in their districts… This will hopefully help reduce our level of mass incarceration.”
When asked why he supported the legislation, Polis replied via email: “Enfranchisement is an essential American right, and we believe that all Americans should be able to participate in the democratic process.”
The average stay in state prisons is less than three years, but the redistricting boundaries—which will be reset in 2022—stand for a decade. “It affects every single district in the state,” says Colorado Rep. Kerry Tipper (D-Jefferson County), who co-sponsored the bill. “It’s a fairness principle. Every single district sends people to prison but only a handful have prisons.” According to Potyondy, 56 percent of those incarcerated in Colorado are being held in counties that only account for 1.32 percent of the state’s population.
Legislators where the majority of those correctional facilities are located tend to disagree, perceiving this shift as gerrymandering by another name. Rep. James Wilson (R-Chaffee County) serves a district that contains eight Department of Corrections (DOC) facilities, more than any other segment of the state. (The nonprofit Prison Policy Initiative estimates that around 11 percent of the people Wilson represents are incarcerated.) “In rural areas, we don’t have a whole lot of people, so if you take 1,000 people out of my district [as a result of counting inmates where they hail from], where will you draw the line to pull in 1,000 more people to offset that? You’ll draw that line outside of my conservative county,” he says. “Any direction you go…it’s going to have an impact on the bigger picture.”
Republican Sen. Dennis Hisey’s district (El Paso County) covers some of the same ground as Wilson’s, and he’s concerned the voices and experiences of his part of the state will be further diluted as a result of the bill’s passage. “Once again, we’re doing what we can to lessen the voice of rural Colorado… I expect my district will become less rural and more urban,” he says. “It messes up the [Census’] whole snapshot-in-time concept.”
The bill passed primarily along party lines, with only one Democrat, Rep. Bri Buentello (D-Pueblo) voting against it. “I represent a very Republican district that has a lot of prisons,” she says. “I went with, frankly, what I felt like my district needed to me do.”
HB20-1010 does not impact where federal dollars are sent in response to Census data. “All of the federal funding flows from raw census data, not the redistricting file,” Tipper says. “A prison in your district has both economic pluses and negatives, and the funding should flow to those facilities and communities. Our intent was not to disturb that in any way whatsoever.” However, all three of the no-vote state legislators we spoke to for this story did voice some fiscal concerns; part of their arguments for counting the inmates as constituents is based on the fact that their counties spend money on programs and administration costs as a direct result of having these facilities in their districts.
A Rising Tide
Over the past decade, support for ending prison gerrymandering has increased. Starting with Maryland and New York in 2011, eight states have now changed how incarcerated individuals are counted for redistricting, including Nevada, Washington, New Jersey, Delaware, and California. Colorado’s push happened quickly, taking place within one session.
“The reality is they [inmates] aren’t treated as constituents. They don’t have any connection to that community,” said Rep. Tipper during a January House committee hearing. “In the small percentage of cases where you have a lifer, that individual still is not connected to that [prison] community in any meaningful way and is still connected to his or her home community.”
Rep. Wilson sees things differently, saying he receives letters from inmates “quite often” and looks into their queries as he would any other constituents’. Sen. Hisey similarly notes that he works regularly with DOC. “I do put in quite a bit of time on [the inmates’] behalf,” he says.
Colorado had already taken steps toward ending this sort of gerrymandering. In the early 2000s, legislation passed that prevented county commissioners and school boards from including prison populations when drawing their districts.
Impacts of the bill won’t be felt in Colorado until redistricting is completed in 2022. The U.S. Census Bureau sends the state a redistricting data file that will, per the new act, be adjusted to count incarcerated individuals in their home communities. There are nearly 20,000 adult prison inmates in the state who could be reassigned based on their last known address. (If that information isn’t available or it’s out of the state, the inmate will still be counted as a resident of the correctional facility where he or she is housed.) In 2018, Coloradans passed Amendments Y and Z, which created two independent commissions in charge of redrawing our electoral districts; they will oversee this process.
Potyondy thinks there will be an even bigger push to end prison-based gerrymandering as the 2030 Census draws closer, potentially even at the federal level. The vast majority of public responses to the federal government have supported redistricting prisoners to their pre-incarceration addresses.
Among those who support an end to prison gerrymandering is Jhil Marquantte. The 46-year-old spent 26 years incarcerated and was released just two years ago. Today, he lives in Aurora and works for a property management company. “Our voices are so silenced when you’re inside and to find out your body count is of value to people—that really was irritating to me,” he says. “My body count was going to have a political impact in certain areas of the state rather than the area I was actually in.”
He was moved around to various correctional facilities across the state, but he thinks 10 years ago, when the last Census took place, he was in Arkansas Valley Correctional Facility in Crowley County. Knowing that he was counted as part of that district makes him feel like a political pawn. “We were counted as part of that population, but we didn’t get to be counted as part of the vote in that county or have anything to do in that county. We couldn’t raise awareness to any issues that were occurring in that county,” he says. “We were just a silent voice. It was disturbing to see that once again we were just another statistic… It makes you feel like less than you really are.”
Marquantte didn’t know about prison gerrymandering until he was on the outside. He’s now on the board of Remerg, which works to reduce Colorado’s recidivism rate, and he testified before the Senate committee in support of the bill. Seeing it pass made him feel like he was finally viewed as part of the community. “It’s important we all are seen equally,” he says. “That’s all I ask for. I just want to see that my voice matters.”