Prison gerrymandering: Who should use the silent bloc of non-voters? (op-ed)

Ava DuVernay’s 2016 documentary The 13^th was named after the amendment to the US constitution that abolished slavery.  The 13^th amendment states neither slavery nor involuntary servitude, except as punishment for a crime shall exist in the United States.  But the filmmaker believes the phrase “except as punishment for a crime” means slavery still exists in modern prisons. 

But slave and indentured servant are not interchangeable.

Under chattel slavery the slave was owned as property with no human rights, the 13^th amendment abolished that concept.  An indentured servant is a person under contract to work for another person for a definite period of time, without pay.  Therefore, a person forced to work against one’s will as punishment for a crime is analogous to indentured servitude not chattel slavery.  Also, prison labor modeled after indentured servitude was conceived in the late seventeenth-century as an alternative to making criminals public spectacles and torturing them.  That means the 13^th amendment advanced humane treatment of criminals. 

But is there a circumstance where prisons can be analogous to slavery? 

A recent headline said: ‘Prison gerrymandering’ shifts political power in Pennsylvania.   The article stated in Pennsylvania the 2020 census will be followed by new congressional and state legislative maps in 2021.  And by counting prisoners as living in their prisons and not at their home addresses, Pennsylvania’s system for drawing political maps (gerrymandering) benefits white rural votes at the expense of urban voters.

           

The Census Bureau counts each person’s “usual residence” which is defined as where a person lives and sleeps most of the time.  For example, someone hospitalized temporarily would be counted at their home address, but a resident in a long-term psychiatric institution would be counted at the facility address.  College students are counted at school and not at home.  The Census Bureau stated since the majority of people in prison live and sleep in the prison counting prisoners anywhere other than the prison would not be consistent with the concept of “usual residence”.

A study published in April by two Villanova University criminologist said, “If prisoners were counted based on their home addresses, [Philadelphia] would gain one, possibly even two majority-minority state house districts.”  But when prisoners are counted in prison, they are factored into the population of the district the prison is located.  This inflates that district’s size and since prisoners serving time for felony convictions are disenfranchised, they become a silent bloc of nonvoters.  Political districts are supposed to be drawn by the principle of “one person, one vote” to have roughly equal populations, but equal population doesn’t mean equal number of voters. Districts with prisons have fewer eligible voters than districts without prisons, giving more weight to the white rural vote.  The Villanova University criminologists said, “The incarcerated are not only missing from their communities, they are also benefiting other communities.”

But this battle over counting inmates sounds similar to the dispute over counting slaves in 1787.  At the Constitutional Convention it was decided that the number of seats each state received in the house of representatives would be determined by its total population.  The southern states wanted their slaves counted.  This would have increased the south’s representation in congress and in the electoral college.  Those in opposition to slavery said slaves shouldn’t be counted at all, only free persons.  So, a compromise was made, every three out of five slaves were counted for the purpose of congressional representation, but the slaves shouldn’t have been counted at all.  The compromised count gave the southern states a third more seats in congress than if the slaves had not been counted, but fewer seats if the slaves had been counted like free persons.

But inmates are counted as free persons, and since there’s no compromise between rural and urban districts, each area wants to benefit from the silent bloc of nonvoters.  Maybe the silent bloc of nonvoters shouldn’t be used at all.  King Solomon would have solved this in seconds by ordering all inmates sawed in half. 

First published in the New Pittsburgh Courier 7/31/19