LDF Disappointed in the U.S. Census Bureau’s Proposed Residence Criteria for Incarcerated Persons for 2020 Census

The NAACP Legal Defense and Educational Fund, Inc. (LDF) is disappointed with the Census Bureau’s plan to continue to count upwards of 2 million incarcerated people, including a disproportionate number of Black and Latino persons, in the wrong location on Census Day. The U.S. Census Bureau has released its proposal on implementing its Residence Criteria for the 2020 Census, which unfortunately fails to reflect overwhelming public support for a change in how those who are incarcerated are counted under the Criteria. Specifically, the Census Bureau has proposed to retain its practice of counting incarcerated individuals as “residents” of their prison facilities instead of as residents of their home communities.  

“The Census Bureau’s flawed practice will continue to make it difficult for states and localities to conduct redistricting that complies with state constitutions, the U.S. Constitution, and the Voting Rights Act,” said Sherrilyn Ifill, President and Director-Counsel of LDF. “Counting incarcerated persons at their place of confinement flies in the face of a representative democracy and creates an imbalance of voting power at the expense of communities of color.”

Importantly, the public has until August 1, 2016 to submit comments to the Census Bureau before the Bureau finalizes its Residence Criteria in advance of the 2020 Census.  This is another opportunity to once again urge the Bureau to count incarcerated individuals at their pre-arrest home where they typically remain lawful residents while confined and are likely to return and live after being released from prison, well beyond Census Day.

Since before the last 2010 decennial Census, LDF has notified the Census Bureau that counting incarcerated individuals as “residents” of their prison facilities delegitimizes the Census as an accurate tool for: communities, incarcerated persons, and their families; government officials and others developing redistricting plans; and researchers attempting to understand local demographics. Although the Census Bureau has proposed to offer states and local jurisdictions data that will allow them to exclude prison populations if they chose to do so, it is LDF’s belief that the Census Bureau bears this burden to ensure that an accurate count occurs.

For redistricting purposes, when jurisdictions use Census data that counts individuals at their prison facilities, this practice artificially inflates the population count of the areas where prisons are located, which tend to be rural and populated by white residents. This is to the detriment of everyone living outside of those areas, including urban communities populated by people of color, and is commonly known as prison-based gerrymandering.

Incarcerated people—disproportionately African American and Latino due to racial discrimination that runs rampant in our criminal system—are not residents in any meaningful ways in the areas where prisons are located. Incarcerated individuals cannot use the streets and parks in the areas where their prisons are located. Most importantly and with too few exceptions, they cannot vote in the areas where their prisons are located.

Under many state constitutions, incarcerated individuals do not lose their residence at the time of their incarceration and the average length of incarceration in state prisons is less than three years. “Prison-based gerrymandering distorts state and local redistricting,” said Leah Aden, Senior Counsel at LDF. “Although states like New York, California, Maryland, and Delaware, as well as over 200 local jurisdictions, lead this nation in passing legislation that requires the counting of incarcerated individuals in their home communities for redistricting purposes, the Census Bureau’s proposed Residence Criteria for 2020 misses the opportunity to ensure more accurate counting by the other 46 states and the thousands of localities within them.”

In 2015, in response to their notice of proposed rule-making, LDF submitted a comment letter, as did more than 160 separate entities, nearly all of whom urged the Census Bureau to count incarcerated persons as residents of their last known pre-arrest home address instead of the particular prison facility where they happen to be located on Census Day. The Census Bureau has seemingly rejected this recommendation. 


Founded in 1940, the NAACP Legal Defense and Educational Fund, Inc. (LDF) is the nation’s first civil and human rights law organization and has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights. LDF’s Thurgood Marshall Institute is a multi-disciplinary and collaborative hub within LDF that launches targeted campaigns and undertakes innovative research to shape the civil rights narrative. In media attributions, please refer to us as the NAACP Legal Defense Fund or LDF.