S6725A-2009 Actions

• Jun 8, 2010: PRINT NUMBER 6725A
• Jun 8, 2010: AMEND AND RECOMMIT TO CRIME VICTIMS, CRIME AND CORRECTION
• Feb 1, 2010: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

S6725A-2009 Memo

BILL NUMBER:S6725A               REVISED 06/09/10

TITLE OF BILL:
An act
to amend the correction law, the legislative law, and the municipal home
rule law, in relation to the collection of census data

PURPOSE:
Provides that for the purposes of redistricting at the State and
Municipal level, incarcerated persons shall be counted as residents
of their places of residence prior to incarceration rather than as
residents of their place of incarceration.

SUMMARY OF PROVISIONS:
Section 1 sets forth the legislative intent for the act.

Section 2 amends section 71 of the Corrections Law to require that in
each year that the Federal Decennial Census is taken that the
Department of Correctional Services shall, by July 1, provide the
Legislative Task Force on Demographic Research and Reapportionment
with the residential address prior to incarceration for each
incarcerated person for whom the Department of Correctional Services
provided information to the United States Census Bureau.

Section 3 amends the section 83-m of the Legislative Law to require
the Legislative Task Force on Demographic Research and
Reapportionment for the purposes of the amended data set it develops,
to correct the residential allocation of incarcerated persons such
that incarcerated persons are reflected not within the census block
of the correctional facility but rather, where possible, in the
census block of their residential address prior to incarceration.
This section requires that such amended data set be used for the
drawing of Senate and Assembly districts.

Section 4 amends d1e Municipal Home Rule law to require
municipalities, for the purposes of redistricting, to reflect
incarcerated persons not within the census block of the correctional
facility but rather, where possible, in the census block of their
residential address prior to incarceration.

Section 5 sets forth a severability provision.

Section 6 provides that the act is effective immediately.

JUSTIFICATION:
Currently, the United States Bureau of the Census includes everyone
housed in federal, state, and local correctional facilities in its
count of the general population of d1e census block that contains the
facility. Until the Census Bureau provides the information necessary
to count people in prison at their address prior to incarceration for
d1e purpose of redistricting, the issue must be addressed at the

state level. With this legislation, New York joins the ranks of
states developing practical and
effective solutions to count people in prison at their addresses prior
to incarceration for the purpose of redistricting.

This legislation counts people in prison at their address prior to
incarceration only for the drawing of legislative districts. The
Census Bureau will continue to count the prison population in the
district where the prison is located. Since this legislation in no
way alters the underlying census data, it has no impact on funding
formulas and allocations given to the state or distributed within the
state that are based on federal census data.

States and localities are addressing this issue because of the
distorting effect that counting people in prison in the prison
district has on the drawing of legislative boundaries. Moreover, the
prison population is distinguishable from other populations, such as
students and those serving in the military, that are counted by the
Census Bureau in what are referred to as "Group Quarters."1

People who have been convicted of a felony and are incarcerated or on
parole cannot vote in New York State, either in the district where
the prison is located or using an absentee ballot at their address
prior to incarceration. In contrast, college students and military
personnel can participate in elections and register to vote from
either their local residence or by submitting an absentee ballot. In
addition, people in prison do not interact with or benefit from the
district where the prison is based.
People in prison do not use the schools, hospitals, or other public
facilities in the community where the prison is based. The costs of
the prisons are not borne by the community where the prison is
located, but rather by all New York State taxpayers. Costs that are
not covered by the State, such as phone expenses and commissary
bills, are paid for by the families of people in prison.

When it comes to the amount of time a person in prison spends in
anyone prison location, of the 15,811 new court commitments to DOCS
custody in 2008,60% had sentences of 3 years or less.
Less than 6% had sentences of 10 years or more, and only a tiny
fraction - 15 people - are serving sentences for Life Without Parole.
Out of the entire DOCS population of nearly 58,000 inmates, only 202
are in for Life Without Parole. For those who do remain in custody
for years, most move frequently between facilities and jurisdictions.2

Federal Law
The state's current reliance on the Census Bureau's flawed
prison counts when drawing legislative districts, violates federal
law in two ways: (1) it dilutes minority voting strength in violation
of Section 2 of the Voting Rights Act of 1965; and (2) it violates
the one person, one vote principle of the Equal protection Clause,
which requires voting districts to have equal numbers of residents

(because people in prison are not residents of the districts where
they are incarcerated and counted).

In 1964's land mark ruling, Reynolds v. Sims, 377 U.S. 533 (1964), the
Supreme Court held that state legislative districts must represent a
roughly equal number of people. Affirming the "one person, one vote"
principle, Chief Justice Warren minced no words in his celebrated
opinion, writing, "Legislators represent people, not trees or acres.
Legislators are elected by voters, not farms or cities or economic
interests. As long as ours is a representative form of government,
the right to elect legislators in a free and unimpaired fashion is a
bedrock of our political system." The Census Bureau's current
methodology undermines the "one person, one vote" Principle supported
by prevailing public values as well as constitutional jurisprudence.

State Law
The Census Bureau's current methodology also violates New
York State law in two ways: (1) it runs afoul of the New York State
Constitution which states in Article 2, section 4 that for the
purpose of voting, "no person shall he deemed to have gained or lost
a residence...while confined in any public prison"; and (2)
similarly, subdivision 1 of section 5-104 of the New York Election
Law states that "For the purpose of registering and voting "no person
shall be deemed to have gained or lost a residence...while confined
in any public prison. In addition, the 1894 New York Court of Appeals
decision in People v Cady, 37 N.E. 673 (N.Y. 1894), stated that
people in prison could not be considered residents of the prison
where they are incarcerated.

Based on federal and state law, people in prison therefore remain
legal residents of their address prior to incarceration.
Unfortunately, the current Census Bureau's methodology disregards
this, instead counting a significant proportion of the national
population in the wrong place. Crediting the population of prisoners
to the Census block where they are temporarily and involuntarily held
creates electoral inequities at all levels of government.

Local Governments
Counting people in prison in the prison district,
most significant impacts vote dilution in rural communities as most
counties, cities, and towns use federal census data to draw their
local legislative district and ward boundaries. St. Lawrence County,
in northern New York, drew legislative districts with Census 2000
data that included more than 3,000 people in three correctional
facilities as if they were actual residents of two small towns,
Ogdensburg and Gouverneur. The increased voting power of Ogdensburg
and Gouverneur residents diluted the votes in the many St. Lawrence
County residents who do not live near those prisons. This inequity
created a long-running and disruptive controversy in St. Lawrence,
and a petition opposing the unequal representation gathered more than
2,000 signatures.3

County legislators and supervisors in 1.3 counties in New York have
subtracted the prison population from the official count prior to
drawing county legislative districts or designing weighted voting
systems to ensure equal representation and avoid creating a
legislative districts that have more people in prison than actual
residents. The New York counties that have corrected the census data
to remove people in prison before redistricting include: Cayuga,
Chemung, Clinton, Dutchess, Essex, Franklin, Greene, Orange, Orleans,
Schoharie, Sullivan, Washington, and Wyoming.

In Essex County's detailed justification for tile removal of people in
prison, me County offered me following explanation:

"Persons incarcerated in state and federal correctional institutions
live in a separate environment, do not participate in me life of
Essex County and do not affect me social and economic character of me
towns.... The inclusion of these federal and state correctional
facility inmates unfairly dilutes tile votes or voting weight of
persons residing in other towns within Essex County..."4

These 13 counties in New York have joined municipalities across me
country to address, on me local level, me redistricting inequities
mat result from relying on me Census Bureau's counting of people in
prison. This removal of people in prison on tile local level does not
put incarcerated people back in their census blocks prior to
incarceration. From tile perspective of these rural counties, however,
counting people at home and not counting them at all results in the
same outcome--either way, me data may use for county districts does
not contain the prison populations.

Other States
About a 100 local governments exclude, for redistricting
purposes, the Census Bureau's prison counts. A few states (Colorado,
Mississippi, New Jersey and Virginia) require or encourage local
governments to do so, but the majority of these counties do so on
their own.5

As awareness in me issue of prison-based gerrymandering has grown, so
too has interest in state level solutions. Similar legislation has
been introduced recently in Connecticut, Florida, Illinois, Oregon,
Rhode Island, and Wisconsin mat would determine me home addresses of
incarcerated people and count them at their addresses prior to
incarceration. During the 2010 legislative session, similar
legislation was signed into law in Maryland passed me House in
Delaware.6

LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

FOOTNOTES:

1 For more details on who is counted as a part of Group Quarters, see:
U.S. Department of Commerce, Bureau of the Census (2009). 2010 Census
Ouestionnaire Reference Book. Washington, D.C.
http://2010.census.gov/partners/pdf/langfiles/qrb English.pdf

2 New York Department of Correctional Services(2009). Under Custody
Report: Profile of Inmate Population Under Custody on January 1,
2009. Albany, NY.
http://www.docs.state.ny.us/Research/Reports/2009/UnderCustody
Report 2009.pdf

3 Prison Policy Initiative (2007). Phantom constituents in the Empire
State: How outdated Census Bureau methodology burdens New York
counties.
http://www.prisoncrsofthecensus.org/nycouteies/

4 More information regarding the Essex County Local Law No.1 2003 is
available at the Prison Policy Initiative website.
http://www.prisonersofthecensus.org/nycounties/essex.html

5 Colo.Rev.Stat.sec.30-10-306.7(5)(a);Miss.Code Section 47-1-63;
N.J.S.A.18A:13-8; Va. Code Ann, §24.2304.1. The Prison Policy
Initiative tracks legislation of this type on a frequently updated
page at:
http://www.prisonersofthecensus.org/legislation.html.

6 S.B. Bill 1386, 112th Regular Session (Fla, 2010); H.B. 4650, 96th
General Assembly (Ill.2009); S.B. 400, 427th Session (MD. 2010), A.
Res, 63, 99th Session (Wis.2009). The Prison Policy Initiative
tracks legislation of this type on a frequently updated page at:
http://http://vww.prisonersofthecensus.org/legislation.html.

S6725A-2009 Text

 S T A T E   O F   N E W   Y O R K
 
 6725--A
 I N  SENATE
 February 1, 2010
 
 Introduced  by Sens. SCHNEIDERMAN, ADAMS, BRESLIN, DILAN, DUANE, ESPADA,
 HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, MONTGOMERY, ONORATO, OPPEN
 HEIMER, PARKER, PERALTA, PERKINS, SAVINO, SERRANO, SQUADRON, STAVISKY,
 STEWART-COUSINS, THOMPSON -- read twice and ordered printed, and  when
 printed  to  be committed to the Committee on Crime Victims, Crime and
 Correction -- committee discharged, bill amended, ordered reprinted as
 amended and recommitted to said committee
 

AN ACT to amend the correction law, the legislative law, and the munici
 pal home rule law, in relation to the collection of census data
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Legislative intent. The legislature finds that for purposes
 of  determining  legislative  districts, incarcerated persons in correc
 tional facilities in this state have been classified as residents of the
 districts where they are incarcerated rather than as residents of  their
 places  of residence prior to incarceration. Article 2, section 4 of the
 New York constitution requires that for the purpose of voting, no person
 shall be deemed to have gained or lost a residence while confined in any
 public prison.  Likewise, subdivision 1 of section 5-104 of the election
 law directs that for the purpose of registering  and  voting  no  person
 shall be deemed to have gained or lost a residence while confined in any
 public  prison. Despite these provisions, the legislature finds that the
 decennial census does not provide the information necessary to  allocate
 incarcerated  persons  to their residences prior to incarceration in the
 manner that the foregoing provisions of the  constitution  and  laws  of
 this state require. This legislation is intended to facilitate the prop
 er  allocation  of  incarcerated  persons  to  their residences prior to
 incarceration for purposes of determining legislative districts, without
 requiring revision of the enumeration of the decennial census.
 

S 2.

Section 71 of the correction law  is  amended  by  adding  a  new
 subdivision 8 to read as follows:

 8. (A) IN EACH YEAR IN WHICH THE FEDERAL DECENNIAL CENSUS IS TAKEN BUT
 IN  WHICH  THE  UNITED  STATES BUREAU OF THE CENSUS DOES NOT IMPLEMENT A
 POLICY OF REPORTING INCARCERATED PERSONS AT EACH SUCH PERSON'S  RESIDEN
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD15664-05-0
 
       S. 6725--A                          2
 TIAL  ADDRESS  PRIOR  TO  INCARCERATION,  THE DEPARTMENT OF CORRECTIONAL
 SERVICES SHALL BY JULY FIRST OF THAT SAME YEAR DELIVER TO  THE  LEGISLA
 TIVE  TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT THE FOLLOW
 ING INFORMATION FOR EACH INCARCERATED PERSON SUBJECT TO THE JURISDICTION
 OF  THE  DEPARTMENT  AND LOCATED IN THIS STATE ON THE DATE FOR WHICH THE
 DECENNIAL CENSUS REPORTS POPULATION:

 (I) A UNIQUE IDENTIFIER, NOT INCLUDING THE NAME, FOR EACH SUCH PERSON;
 (II) THE STREET ADDRESS OF THE CORRECTIONAL  FACILITY  IN  WHICH  SUCH
 PERSON WAS INCARCERATED AT THE TIME OF SUCH REPORT;
 (III)  THE  RESIDENTIAL  ADDRESS OF SUCH PERSON PRIOR TO INCARCERATION
 (IF ANY); AND
 (IV) ANY ADDITIONAL INFORMATION AS THE TASK FORCE MAY SPECIFY PURSUANT
 TO LAW.
 (B) THE DEPARTMENT SHALL PROVIDE THE INFORMATION  SPECIFIED  IN  PARA
 GRAPH (A) OF THIS SUBDIVISION IN SUCH FORM AS THE LEGISLATIVE TASK FORCE
 ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT SHALL SPECIFY.
 

S  3. 

Section  83-m of the legislative law is amended by adding a new
 subdivision 13 to read as follows:

 13. (A) THE TASK FORCE SHALL SPECIFY THE FORM IN WHICH THE  DEPARTMENT
 OF  CORRECTIONAL  SERVICES SHALL PROVIDE SUCH INFORMATION REQUIRED TO BE
 REPORTED TO THE TASK FORCE PURSUANT  TO  SUBDIVISION  EIGHT  OF  SECTION
 SEVENTY-ONE OF THE CORRECTION LAW.
 (B)  UPON  RECEIPT  OF  SUCH  INFORMATION FOR EACH INCARCERATED PERSON
 SUBJECT TO THE JURISDICTION OF THE DEPARTMENT OF CORRECTIONAL  SERVICES,
 THE  TASK  FORCE  SHALL  DETERMINE THE CENSUS BLOCK CORRESPONDING TO THE
 STREET ADDRESS OF EACH SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR TO INCAR
 CERATION (IF ANY), AND THE CENSUS  BLOCK  CORRESPONDING  TO  THE  STREET
 ADDRESS  OF  THE  CORRECTIONAL  FACILITY  IN  WHICH SUCH PERSON WAS HELD
 SUBJECT TO THE JURISDICTION OF SUCH DEPARTMENT. UNTIL SUCH TIME  AS  THE
 UNITED STATES BUREAU OF THE CENSUS SHALL IMPLEMENT A POLICY OF REPORTING
 EACH SUCH INCARCERATED PERSON AT SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR
 TO  INCARCERATION, THE TASK FORCE SHALL USE SUCH DATA TO DEVELOP A DATA
 BASE IN WHICH ALL INCARCERATED PERSONS SHALL BE, WHERE  POSSIBLE,  ALLO
 CATED  FOR  REDISTRICTING  PURPOSES,  SUCH  THAT  EACH  GEOGRAPHIC  UNIT
 REFLECTS  INCARCERATED  POPULATIONS  AT  THEIR  RESPECTIVE   RESIDENTIAL
 ADDRESSES  PRIOR  TO  INCARCERATION RATHER THAN AT THE ADDRESSES OF SUCH
 CORRECTIONAL FACILITIES.  FOR ALL INCARCERATED PERSONS WHOSE RESIDENTIAL
 ADDRESS PRIOR TO INCARCERATION WAS OUTSIDE OF THE STATE, OR FOR WHOM THE
 TASK FORCE CANNOT IDENTIFY THEIR PRIOR RESIDENTIAL ADDRESS, AND FOR  ALL
 PERSONS  CONFINED  IN A FEDERAL CORRECTIONAL FACILITY ON CENSUS DAY, THE
 TASK FORCE SHALL CONSIDER THOSE PERSONS  TO  HAVE  BEEN  COUNTED  AT  AN
 ADDRESS  UNKNOWN  AND  PERSONS  AT  SUCH  UNKNOWN  ADDRESS  SHALL NOT BE
 INCLUDED IN SUCH DATA SET CREATED PURSUANT TO THIS PARAGRAPH.  THE  TASK
 FORCE  SHALL  DEVELOP  AND MAINTAIN SUCH AMENDED POPULATION DATA SET AND
 SHALL MAKE SUCH AMENDED DATA SET  AVAILABLE  TO  LOCAL  GOVERNMENTS,  AS
 DEFINED  IN  SUBDIVISION EIGHT OF SECTION TWO OF THE MUNICIPAL HOME RULE
 LAW, AND FOR THE DRAWING OF ASSEMBLY AND SENATE DISTRICTS.  THE ASSEMBLY
 AND SENATE DISTRICTS SHALL BE DRAWN USING SUCH AMENDED  POPULATION  DATA
 SET.
 (C)  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  THE INFORMATION
 REQUIRED TO BE PROVIDED PURSUANT TO SUBDIVISION EIGHT OF SECTION  SEVEN
 TY-ONE  OF THE CORRECTION LAW SHALL BE TREATED AS CONFIDENTIAL AND SHALL
 NOT BE DISCLOSED BY THE TASK FORCE EXCEPT AS AGGREGATED BY CENSUS  BLOCK
 FOR PURPOSE SPECIFIED IN THIS SUBDIVISION.
 

S  4.  The opening paragraph, subclause (i.) of clause (a.) and clause
 (c.) of subparagraph 13 of paragraph a of subdivision 1 of section 10 of
 
       S. 6725--A                          3
 the municipal home rule law, as added by chapter  834  of  the  laws  of
 1969, are amended to read as follows:

 The apportionment of its legislative body and, only in connection with
 such  action  taken  pursuant  to this subparagraph, the composition and
 membership of such body, the terms of office  of  members  thereof,  the
 units  of local government or other areas from which representatives are
 to be chosen and the voting powers of individual members of such  legis
 lative  body.  [The]  EXCEPT FOR THE EQUAL APPORTIONMENT REQUIREMENTS IN
 SUBCLAUSE (I.) OF CLAUSE (A.) AND  CLAUSE  (C.)  OF  THIS  SUBPARAGRAPH,
 WHICH  SHALL  APPLY GENERALLY TO ANY LOCAL GOVERNMENT, THE power granted
 by this subparagraph shall be in addition to and not in substitution for
 any other power and the provisions of this subparagraph shall apply only
 to local governments which adopt a plan of apportionment thereunder.
 (i.) The plan shall provide substantially equal weight for  [all]  the
 [voters] POPULATION of that local government in the allocation of repre
 sentation in the local legislative body.
 (c.)  As  used  in  this subparagraph the term "population" shall mean
 residents, citizens, or registered voters. FOR SUCH PURPOSES, NO  PERSON
 SHALL  BE DEEMED TO HAVE GAINED OR LOST A RESIDENCE, OR TO HAVE BECOME A
 RESIDENT OF A LOCAL GOVERNMENT,  AS  DEFINED  IN  SUBDIVISION  EIGHT  OF
 SECTION TWO OF THIS CHAPTER, BY REASON OF BEING SUBJECT TO THE JURISDIC
 TION  OF  THE DEPARTMENT OF CORRECTIONAL SERVICES AND PRESENT IN A STATE
 CORRECTIONAL FACILITY PURSUANT TO SUCH JURISDICTION. A  population  base
 for  such  a  plan of apportionment shall utilize the latest statistical
 information obtainable from an official enumeration  done  at  the  same
 time  for all the residents, citizens, or registered voters of the local
 government.  Such a plan may allocate, by  extrapolation  or  any  other
 rational  method,  such latest statistical information to representation
 areas or units of local government, provided that  any  plan  containing
 such an allocation shall have annexed thereto as an appendix, a detailed
 explanation of the allocation.
 

S  5.  Severability.  If any section, subdivision, paragraph, subpara
 graph, clause or other part of this act or its application is held to be
 invalid by final judgment of a court  of  competent  jurisdiction,  such
 invalidity shall not be deemed to impair or otherwise affect the validi
 ty  of  the remaining provisions or applications of this act that can be
 given effect without such invalid provision  or  application,  but  such
 invalidity  shall  be  confined  to the section, subdivision, paragraph,
 subparagraph, clause or other  part  of  this  act  or  its  application
 directly  held  invalid thereby, which are declared to be severable from
 the remainder of this act. It is declared to be the intent of the legis
 lature that this act would have been enacted but for  any  such  invalid
 provision or application thereof.
 

S  6.  This act shall take effect immediately; provided, however, that
 the amendments to section 83-m of the legislative law  made  by  section
 three  of this act shall not affect the repeal of such section and shall
 be deemed repealed therewith.

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