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Rural New York Legislators Propose Resurrecting Jim Crow

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Message Andrew Adams

Prisons are a booming business. Since the 1980's when the U.S. incarcerated around 300,000 people, the prison population has exploded to more than 2.3 million. The history of racial control in the U.S. via means of slavery, Jim Crow, segregation, and poll and literacy tests has continued in the form of felony convictions that led to our era of mass incarceration. It comes as no surprise that people of color are disproportionately targeted and comprise a large percentage of prison populations.

In upstate New York, whose population is in a consistent downward spiral, upstate politicians turned to prisons as a lifeline for a mostly rural, white population. New York Assembly members Kenneth Blankenbush (Republican, AD 122) and Addie Russell (Democrat, AD 118) are well aware of this. Five prisons are located in the two upstate counties they represent. The population of these two counties is over 95% white, however the prison population is over 87% people of color.

Are Blankenbush and Russell really okay padding their districts with incarcerated people of color bussed in from New York City and other urban areas? In an interview in the Watertown Daily Times, Blankenbush argued, "They're residing in the prisons. That's where they're using our water, our sewer, our electric." Russell added, "Prisons are a cost to the local community. Prisoners go back and forth on our roads, they use our local health-care system, they use the services in the area."

Their rhetoric of "us vs. them" could lead a reader to believe that the prisons are a burden to the region, rather than what sustains it. The reality is that the law passed last August doesn't affect the core census data, and thus doesn't alter federal or state funding based on the census. What the Assembly members' comments mask are that their own political careers are dependent upon the practice of mass incarceration of people of color in their districts. 

This past August, the New York state legislature, where Blankenbush and Russell serve, passed a law that brought New York into compliance not only with federal law, but also with its own state Constitution. The bill, broadly supported by more than 70 statewide policy, civil rights, good government and community organizations, required that for purposes of determining population for drawing district lines, persons incarcerated in New York prisons be counted as residents of their home communities, not where they have been transported to for confinement. Counting incarcerated persons in the place they are detained is a practice known as prison-based gerrymandering. 

When the district lines are drawn next year to reflect population shifts since the last census, incarcerated people will be counted in their home communities. The Supreme Court requires that each legislative district must have roughly the same population, thereby giving each resident equal representation. Crucially, Blankenbush and Russell are scrambling to call prisoners "constituents" because they've noticed that their districts are falling short on actual constituents.

The New York Constitution mandates that incarcerated people be counted as part of their home communities, not at the prison. "No person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while confined in any public prison." ( N.Y. Const. Art. 2-4).   Further, the state's highest court held that a prison is not a place of residence in People v. Cady, 143 N.Y. 100 (1847).  

Despite this, in a desperate attempt to save his political career, Blankenbush is supporting a bill that would reverse last August's legislation and count prisoners where they're incarcerated. Who is Blankenbush trying to fool with his attempt to ignore the fundamental democratic principle of "one person, one vote" by pretending that the gerrymandering bill he supports wouldn't violate the law? 

When a district contains a prison, the federal census counts the incarcerated people in that district as population, thereby artificially inflating the actual number of residents and padding the legislative district. For example, this can result in a district of 2,500 constituents and 2,500 prisoners having the political clout of 5,000 constituents. This phenomenon awards those who live adjacent to a prison more influence than their neighbors in other districts.

Blankenbush and his Republican colleagues, flaunting their lack of command over the state constitution, say that it requires incarcerated people to be counted in the prisons. While the federal census data does this, it is common and legally permissible under Federal law to adjust the census data. Indeed, in New York, it is now the law.

Russell, on the other hand, makes it personal. She claims, "If they want to be counted at home, they shouldn't have done something to be incarcerated." Russell is wrong. The prisoners didn't ask to be counted at home. The legislature brought an end to prison-based gerrymandering and brought New York's laws in harmony with the state constitution.  

Ironically, Russell wants to preach personal responsibility and that laws have consequences. But she can't have it both ways. She can amend the constitution or follow the law. Incarcerated people understand that, and Russell should too -- she has five prisons in her backyard.   
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Andrew Adams is a J.D. candidate at the City University of New York School of Law. He is working on prison-based gerrymandering issues with the Prison Policy Initiative in Northampton, MA.
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Rural New York Legislators Propose Resurrecting Jim Crow

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