Pa. to change how it counts prisoners
The commission responsible for redrawing Pennsylvania’s state legislative districts has opted to count state prisoners at their home addresses, and not where they’re currently incarcerated.
The Pennsylvania Legislative Reapportionment Commission, chaired by University of Pittsburgh chancellor emeritus Mark Nordenberg, voted 3-2 on Tuesday to change how they count prisoners — which could shift thousands of people into other districts for the purpose of redrawing boundaries.
Mr. Nordenberg, considered the body’s neutral chair, joined the two Democratic caucus leaders on the commission — Senate Majority Leader Jay Costa and House Minority Leader Joanna McClinton — to pass the resolution. Republicans Kim Ward and Kerry Benninghoff voted against the change.
Advocates had pushed for an immediate end to the practice of counting incarcerated individuals where they sleep and reside — in state correctional institutions — and not at the address where they likely would return after their sentence, where they would call home.
There are about 37,000 state inmates who live among 23 facilities in 19 counties — many of which are located in largely white, rural areas. Those who are serving life sentences are
excluded from this change, and will continue to be counted where they’re incarcerated.
Mr. Nordenberg said it was clear from the commission’s chief counsel that they indeed had the authority to make the change unilaterally, and didn’t have to wait for the Legislature to take action.
He also cited a delegate to Pennsylvania’s constitutional convention in 1968 who said a plan “which places a number of citizens in a legislative district in which they can have virtually no hope of affecting the outcome of an election or the official conduct of the elected legislators” would “effectively disenfranchise” those people.
“When a system holds and counts a person in one place but forces him or her to vote in another, it does create a basic issue of fairness,” Mr. Nordenberg said, adding that counting incarcerated individuals in their prisons distorts reapportionment by giving more weight to voters in districts with state correctional institutions.
“I don’t think this is an ideal resolution. I don’t think it is an ideal step forward. But I do think we can’t wait for another 10 years,” Mr. Nordenberg said before announcing his tie-breaking support of the resolution.
These prisoners are currently counted, and have always been counted here, in the areas where they live and sleep most of the time — their prisons — per the U.S. Census Bureau’s definition, but that’s merely a practice and not an attempt to designate legal residency, the commission’s chief counsel said.
Before the vote, Chief Counsel Robert Byer revealed his findings from studying the legal implications of the change, saying that neither the U.S. or state constitutions would be violated if the commission changed the rule or maintained the current practice.
The state constitution, he added, gives the role of legislative redistricting to the commission, and legislation “is not required in order to make the changes proposed in the resolution.”
“This commission has the authority to adopt the proposed resolution if it conclude the proposed change is required,” Mr. Byer said, insisting that the law doesn’t prohibit changing the practice if they determine such a change is required in the interest of fairness and sound policy.
Ms. McClinton, who introduced the resolution, argued that it is, indeed, an issue of fairness. She called the practice of treating incarcerated people as residents of places they’re incarcerated “unjust,” and noted that for purposes of elections, incarcerated people are treated as residents of their home communities.
She also claimed minorities and people of color are adversely impacted by counting prisoners this way, citing data presented to the committee that showed Philadelphia is home to 12% of Pennsylvania’s total population, but that Philadelphians make up 25% of the state prison population. All state prisoners are held in prisons outside of Philadelphia in mostly rural and less populated counties, she noted.
“It makes no sense that we ignore the societal shift and continue to treat incarcerated persons as residents of where they’re incarcerated — where they don’t have daily or long-term connections in the community or plans to remain there,” Ms. McClinton said.
Ms. Ward, R-Hempfield, countered that prisoners are physically located in the districts where they’re incarcerated, “not only utilizing the facilities utilities and resources in the districts where they reside, but also using representational bandwidth.” She argued that legislators work with those state prisoners as if they’re representing them.
“I think that moving these prisoners from the district would improperly dilute the representation of the individuals who live there,” Ms. Ward said. “Their facilities and their utilities are all being used by the prisoners.”
Deeming the action “outside the scope” of the commission’s authority, Mr. Benninghoff had argued that no other state that made this exact change — 11, in total — did so absent of the legislative process.
The chief counsel, though, said in nine of those states, the state legislature retains control of the redistricting process, and in the other two, independent citizens commissions were involved. Neither applies to Pennsylvania, he said.
“For reasons described by counsel, I have concluded that the commission does have the authority to act,” Mr. Nordenberg said, agreeing there’s nothing in the law that would prevent the commission from altering a longstanding practice by the Census Bureau.
Mr. Nordenberg did say he has concerns about the commission’s ability to corral the necessary prison data, and agreed with the caucus leaders that they would request a number of data sets from the Department of Corrections.
After the vote on the change, Ms. Ward proposed a resolution — backed by Mr. Benninghoff — that would exclude prisoners who are serving sentences of 10 years or longer from the new counting method, meaning they would continue to be counted in the areas where they’re incarcerated.
The chairman requested the Republicans table that resolution so they had time to ask the corrections department for data — including on those who are serving sentences of 10 or more years — “so we’ll be much better informed to deal with this issue, which is an important one.”