House Democrats pushing bill to change how prison inmates are counted for redistricting

Now that the 2020 Census is officially underway, Democratic lawmakers are out to tweak that counting with a bill up for hearing in the House State, Veterans and Military Affairs Committee on Jan. 30.

House Bill 1010 is sponsored by Reps. Kerry Tipper, D-Lakewood and James Coleman, D-Aurora, and would change how state prison inmates are counted for purposes of congressional redistricting.

The bill would require the Department of Corrections to track down an inmate’s last known home address, if not already collected, and that address would be used in counting that inmate for the census.

The state has more than 20,000 people incarcerated, and about 14,000 of them are in state prisons.

About 92% of prison inmates do provide a last-known address at the time of incarceration, according to Tipper. There will be some issues in this kind of counting, she acknowledged, such as what to do with inmates who are incarcerated in Colorado but came from another state. (For now, the bill says not to count them.) It also wouldn’t include inmates in federal penitentiaries.

Tipper pointed out that the average sentence in DOC is around three years. “Is it fair to have someone with a three-year sentence be allocated to a district for 10 years?” she asked. She also believes this is an effort to make the data as “fair” as possible, and doesn’t believe the numbers would improve so-called Democratic districts at the expense of Republican ones.

The bill isn’t a new concept. Proponents claim prison gerrymandering, as it’s known, inflates the power of rural voters, since prisons are more often built in rural communities that also tend to be conservative. Brent Staples, an author and New York Times columnist, says “there are many ways to hijack political power. One of them is to draw state or city legislative districts around large prisons — and pretend that the inmates are legitimate constituents.”

The Prison Gerrymandering Project claims that prison gerrymandering “is most dramatic in rural, low-population communities that host a prison; there the phantom prison population can account for most of a local government district.”

That’s true in Crowley County, which has a population of 5,848 as of 2018, but more than 2,600 are inmates at one of the county’s two state prisons (one private, one state-run). That gives the county the highest percentage of its population that is made up of incarcerated prisoners of any county in the nation, according to the Prison Gerrymandering Project.

Six states — all controlled by Democrats — have already passed laws that allow prison inmates to be counted at their last known addresses, as HB 1010 would do. Two — New York and Maryland — have won U.S. Supreme Court challenges to those laws. For four states — California, Delaware, Nevada and Washington — their laws changing inmate counting will apply for the first time with the 2020 Census.

And while HB 1010 includes language that this would not be tied to federal funding, as laws in those other states have done, proponents also claim districts with prisons receive more federal funding than they should be entitled to.

Republican lawmakers whose districts include large prison populations aren’t taking too well to the bill.

Sens. Dennis Hisey, R-Fountain, and Jerry Sonnenberg, R-Sterling, both have substantial prison populations in their districts. Hisey’s district includes Fremont County, with seven out of the state’s 21 state-run prisons and at least 4,400 beds, not including Centennial South, aka CSP II, which is being targeted for reopening sometime in the next year. Reopening CSP II would add about 900 beds in Fremont County, once the prison has been remodeled from its current solitary confinement set-up — a set-up the state no longer supports as a matter of policy — to one that could house high-security inmates, with recreation yards, common rooms and cafeterias.

Sonnenberg’s district has two state-run prisons — Limon and Sterling — that house a total of 1,854 inmates, and two private prisons, including the state's largest in Kit Carson County, with 1,688 beds.

Hisey told Colorado Politics he’s opposed to the bill. “I believe [Tipper’s] intent is not to affect the funding, but so much funding that comes from the federal government is based on headcount. So you can’t run two sets of books, one for redistricting and another for money.” He also said he isn’t sure that the proposal would stand up legally.

“I don’t think the feds are going to ask for one set of data and the state will work off another,” Hisey said.

He acknowledged a change would cost his district around 5,300 people who aren’t really his constituents. But many of the people who work in those prisons aren’t his constituents, either; many commute from Pueblo, which is about 45 minutes away.

“They are using services” provided by Fremont County, he said. That also goes for people who move into the county who want to be close to family members who are incarcerated. “Those people tend to need government assistance. We need that headcount to provide those services.”

Hisey also believes this is an effort to shift legislative power to urban communities and away from rural ones, since most of the inmates come from urban areas.

Sonnenberg, likewise, is opposed to the bill and for many of the same reasons, saying “The reason we do redistricting and reapportionment the way it is now is because it impacts those communities that provide services to families of inmates.”

HB 1010 would be another form of gerrymandering, he said.

Sonnenberg pointed out that the census accounts for those incarcerated in those prison communities. To say an inmate is in Denver when they’re actually housed in Sterling, for example, is deceptive, he added.

“I hope this isn’t a political ploy,” Sonnenberg said, “but any time you have voter gerrymandering it becomes political. If you take votes away from rural communities that provide services, you take those services away.”

The bill also raises some concerns for the DOC, although they support the concept, Tipper said. DOC spokeswoman Annie Skinner said that not all inmates report home addresses.

“When offenders come into the intake prison system, they self-report their home or last known address” and some don’t even do that, she said, adding that the department has no verification process to ensure the information is correct. That raises logistical as well as cost issues for DOC, she said.