NY State Senate Bill S6725A

Archive: Last Bill Status - In Senate Committee Crime Victims, Crime And Correction Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2010	print number 6725a
Jun 08, 2010	amend and recommit to crime victims, crime and correction
Feb 01, 2010	referred to crime victims, crime and correction

Bill Amendments

Original

A (Active)

Original

A (Active)

Co-Sponsors

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S6725 - Details

See Assembly Version of this Bill:: A9834
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd §71, Cor L; amd §83-m, Leg L; amd §10, Munic Home R L

S6725 - Summary

Relates to the collection of census data.

S6725 - Sponsor Memo

 BILL NUMBER:  S6725

 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, the Department
of Correctional Services shall within 90 days of the census or 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. This
section also specifies that the Task Force may request additional
information pursuant to law and provides for the confidentiality of
any information delivered to the Task Force.

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 aggregated data set it develops, to remove
incarcerated persons from the population count of the census block of
the correctional facility and, where possible, allocate the
incarcerated persons to the census block of their residential address
prior to incarceration. This section requires the Task Force to make
such aggregated data set available for the drawing of Senate and
Assembly as well as to local governments.

Section 4 amends the Municipal Home Rule law to require
municipalities, for the purposes of redistricting, to remove
incarcerated persons from the population count of the census block of
the correctional facility and, where possible, allocate the
incarcerated person s to 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 the Census block that contains the
facility. The state's current reliance on the Census Bureau's flawed
prison counts when drawing legislative districts, violates federal law
in two ways: it dilutes minority voting strength in violation of
Section 2 of the Voting Rights Act of 1965; and 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 landmarking, 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 Bureaus current
methodology undermines the "one person, one vote" principle supported
by prevailing public values as well as constitutional jurisprudence.

The Census Bureau's current methodology also violates the New York
State law in two ways: 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"; Similarly,
subdivision 1 of section 5-104 of the New York 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. 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.

These electoral inequities are apparent in New York State, where with
a prison population of approximately 60,000, over 75% of people in
prison are people of color and over 70% are from urban communities.1
Thus, urban communities such as Albany, Buffalo, New York City,
Rochester, and Syracuse are being counted for the purposes of
redistricting in rural communities, leading to vote dilution for urban
communities of color across the state.

The most significant vote dilution, however, 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.2

County legislators and supervisors in 13 counties in New York State
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 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 the removal of people in
prison, the County offered the following explanation:

"Persons incarcerated in state and federal correctional institutions
live in a separate environment, do not participate in the life of
Essex County and do not affect the social and economic character of
the towns.... The inclusion of these federal and state correctional
facility inmates unfairly dilutes the votes or voting weight of
persons residing in other towns within Essex County..."3

These 13 counties in New York State have joined municipalities across
the country, by taking matters into their own hands to address, on the
local level, the redistricting inequities that result from relying on
the Census Bureau's counting of people in prison. This removal of
people in prison on the local level does not, of course, put
incarcerated people back in their census blocks prior to
incarceration.  However, from the perspective of these rural counties,
counting people at home and not counting them at all is the same
thing.  Either way, the data they use for county districts does not
contain the prison populations.

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.4

As awareness in the issue of prison-based gerrymandering has grown, so
too has interest in state-level solutions. Currently, legislation is
pending in Florida, Illinois and Maryland that would determine the
home addresses of incarcerated people and count them at their
addresses prior to incarceration. (Senator Shields in Oregon is also
expected to re-introduce legislation in the special session during the
week of February 1, 2010.) In Wisconsin, a constitutional amendment
has been introduced that would prohibit the state and local
governments from including prison populations in the redistricting
data.5

In addition to the above states, in the past, bills to count people in
prison at their address prior to incarceration for state redistricting
purposes have been introduced in Texas and Michigan.6

States and localities are addressing this issue because of the
distorting effect that people in prison have on the drawing of
legislative boundaries and because the 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" for a number of reasons.7

Most importantly, 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.8 In contrast, college students
and military personal 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.

In terms of the amount of time people in prison are spending in the
community where the prison is located, according to the Department of
Correctional Services, in 2008, 15 people (or one tenth of one percent
of all people admitted that year) had a sentence of life without
parole; 60% of people admitted had minimum sentences between 1 year
and 3 years; and 5.6% of people had minimum sentences of 10 years or
more.9

Until the Census Bureau provides the information necessary-to allocate
people in prison to their address prior to incarceration, the way to
address this issue is on a statewide basis. 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 purposes of redistricting.

It is important to note that this legislation is limited to the
drawing of legislative districts, and does not in anyway revise or
alter the underlying census data. Thus, the legislation has no impact
on or effect on funding formulas and allocations given to states or
within states that are based on federal census data. The Federal
Census data will continue to include prison populations.

 LEGISLATIVE HISTORY :
New Bill.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.
 FOOTNOTES :
1  http://www.docs.state.ny.us/Research/Reports/2009/Under Custody
Report 2009.pdf.
2  Phantom constituents in the Empire State: How outdated Census
Bureau methodology burdens New York counties By Peter Wagner, Meghan
Rudy, Ellie Happel and Will Goldberg Prison Policy Inititative July
18, 2007 Section: IV. Summary of findings in individual counties
http://prisonersofthecensus.org/nycounties/report/htm1
IV.
3  Essex Local Law No. 1 2003, http//www.prisonersofthecensus/org/
nycounties//essex.html.
4  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, §24.2-304.1.  The Prison Policy
Initiative tracks legislation of this type on a frequently updated
page at:  http://www.prisonersofthecensus.org/legislation.html.
5  S.B. Bill 1386, 112th Regular Session (Fla, 2010); H.B. 4650, 96th
General Assembly (Ill.2009); S.B. 400, 427th Session (M.D. 2010), A.
Res, 63, 99th Session (Wis.2009).  The Prison Policy Initiative tracks
legislation of this type on a frequently updated page at:
http://www.prisonersofthecensus.org/legislation.html.
6  H.B. Bill 672, 76th Session (Tx.2009); H.B.4935,94th Regular
Session (Mi.2007). The Prison Policy Initiative tracks legislation of
this type on a frequently updated page at:
http://www.prisonersofthecensus.org/ legislation.html.
7  For more details on who is counted as a part of Group Quarters:
http://2010.census.gov/parters/pdh/langfiles/qrb-English.pdf.
8  http://www.elections.state.ny/us/Voting.html/
9  The chart on p.8 of this report from the Department of Correctional
Services has these figures in more detail:
http://docs.state.ny.us/Research/Reports/2009/Court-Commitments
-2008.pdf.

S6725 - Bill Text download pdf

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6725

                            I N  S E N A T E

                            February 1, 2010
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
  when printed to be committed to the Committee on Crime Victims,  Crime
  and Correction

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.  This
legislation is intended to facilitate the proper allocation of incarcer-
ated  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  REPORT  INCAR-
CERATED  PERSONS  AT  EACH  SUCH  PERSON'S  RESIDENTIAL ADDRESS PRIOR TO
INCARCERATION, THE DEPARTMENT OF CORRECTIONAL  SERVICES  SHALL  BY  JULY
FIRST  OF  THAT SAME YEAR DELIVER TO THE LEGISLATIVE TASK FORCE ON DEMO-
GRAPHIC RESEARCH AND REAPPORTIONMENT THE FOLLOWING INFORMATION FOR  EACH
INCARCERATED PERSON SUBJECT TO THE JURISDICTION OF THE DEPARTMENT:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15664-02-0

S. 6725                             2

  (I)  A UNIQUE IDENTIFIER, NOT INCLUDING THE NAME, FOR EACH SUCH PERSON
LOCATED IN THIS STATE ON THE DATE FOR WHICH THE DECENNIAL CENSUS REPORTS
POPULATION FOR THOSE INCLUDED IN ANY REPORT  PROVIDED  TO  CENSUS  OFFI-
CIALS,  IF  THE  FORM,  RESPONSE,  OR  REPORT  INDICATES THAT THE PERSON
RESIDES AT THE CORRECTIONAL FACILITY;
  (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.
  (C) NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  THE  INFORMATION
REQUIRED  TO  BE PROVIDED PURSUANT TO THIS SUBDIVISION SHALL NOT INCLUDE
THE NAME OF ANY INCARCERATED PERSON AND SHALL NOT ALLOW  FOR  THE  IDEN-
TIFICATION  OF  ANY  SUCH PERSON THEREFROM. THE SAME SHALL BE TREATED AS
CONFIDENTIAL AND SHALL NOT OTHERWISE BE DISCLOSED EXCEPT  AS  AGGREGATED
BY  CENSUS  BLOCK  FOR  PURPOSES  SPECIFIED  IN  SUBDIVISION THIRTEEN OF
SECTION EIGHTY-THREE-M OF THE LEGISLATIVE LAW.
  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 REPORT EACH  SUCH  INCARCERATED
PERSON  AT SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR TO INCARCERATION, THE
TASK FORCE SHALL USE SUCH DATA TO DEVELOP A DATABASE IN WHICH ALL INCAR-
CERATED PERSONS SHALL BE  REMOVED  FROM  THE  RESPECTIVE  CENSUS  BLOCKS
CORRESPONDING  TO THE STREET ADDRESSES OF THE CORRECTIONAL FACILITIES IN
WHICH THEY ARE HELD SUBJECT TO THE JURISDICTION OF SUCH DEPARTMENT,  AND
WHERE  POSSIBLE,  ALLOCATED  TO  THE  POPULATION  COUNTS PROVIDED BY THE
UNITED STATES BUREAU OF THE CENSUS FOR REDISTRICTING PURPOSES, SUCH THAT
EACH GEOGRAPHIC UNIT REFLECTS INCARCERATED POPULATIONS AT THEIR  RESPEC-
TIVE  RESIDENTIAL  ADDRESSES  PRIOR  TO INCARCERATION RATHER THAN AT THE
ADDRESSES OF SUCH CORRECTIONAL FACILITIES. THE TASK FORCE SHALL  DEVELOP
AND MAINTAIN THIS AMENDED POPULATION DATA SET AND SHALL MAKE SUCH AGGRE-
GATED  DATA  SET  AVAILABLE  FOR  THE  DRAWING  OF  ASSEMBLY  AND SENATE
DISTRICTS.  THE TASK FORCE ALSO SHALL  MAKE  SUCH  AGGREGATED  DATA  SET
AVAILABLE  TO  LOCAL  GOVERNMENTS,  AS  DEFINED  IN SUBDIVISION EIGHT OF
SECTION TWO OF THE MUNICIPAL HOME RULE LAW.
  S 4. Subclause (i.) of clause (a.) and clause (c.) of subparagraph  13
of paragraph a of subdivision 1 of section 10 of the municipal home rule
law, as added by chapter 834 of the laws of 1969, are amended to read as
follows:

S. 6725                             3

  (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 THESE PURPOSES, NO PERSON
SHALL BE DEEMED TO HAVE GAINED OR LOST A RESIDENCE BY REASON OF  HIS  OR
HER PRESENCE OR ABSENCE, OR TO HAVE BECOME A RESIDENT OF A LOCAL GOVERN-
MENT, AS DEFINED IN SUBDIVISION EIGHT OF SECTION TWO OF THIS CHAPTER, BY
REASON  OF HIS OR HER PRESENCE, WHILE SUBJECT TO THE JURISDICTION OF THE
DEPARTMENT OF CORRECTIONAL SERVICES. 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.

Co-Sponsors

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S6725A (ACTIVE) - Details

See Assembly Version of this Bill:: A9834
Current Committee:: Senate Crime Victims, Crime And Correction
Law Section:: Correction Law
Laws Affected:: Amd §71, Cor L; amd §83-m, Leg L; amd §10, Munic Home R L

S6725A (ACTIVE) - Summary

Relates to the collection of census data.

S6725A (ACTIVE) - Sponsor 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 (ACTIVE) - Bill Text download pdf

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6725--A

                            I N  S E N A T E

                            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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senate Bill S6725A

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