The 5/3 Compromise

This is not a typo as I am sure you probably thought about the 3/5 Compromise that helped to solidify the political marginalization of Black people in America. This historical update is fitting coming off the heels of the July 4th holiday weekend. Leading up the Constitutional Convention in 1787, there was a growing divide between Northern states and southern states of if and how slaves (the vast majority of which were Black) should be counted for purposes of representation and taxation.

Delegates that opposed slavery (and not all of these delegates were morally pure) only wanted to count free inhabitants of each state. On the other hand, delegates that supported slavery wanted to count their slave population as part of the total population despite the fact that slaves could not vote and were commonly regarded as property. Of course, delegates that supported the latter position would be over represented in the House of Representatives. The “Great Compromise” resulted in what we now understand as the three-fifths compromise. This compromise has been updated for the times and has serious consequences for the future.

The three-fifths compromise is found in Article 1, Section 2, Paragraph 3 of the United States Constitution:

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

This compromise helped put in place the seed of legal discrimination that has taken root in America’s institutions resulting in what we commonly refer to today as institutional racism. And unfortunately, we are witnessing history repeat itself today in the form of the prison-industrial-complex. You know the story; America has the highest incarceration rate in the world, politicians will do most anything to look like they are fighting crime (see HBO’s The Wire or reference the Willie Horton ad), mandatory minimums, crack vs powder cocaine sentencing disparities, rehabilitation consistently portrayed as too expensive, prisoners working for slave wages, privately owned prisons, and future construction of prisons based on the academic achievement for youth in the third grade.

And while the prison population skyrockets, prisoners register very low on the public radar unless some heinous crime results in tougher sentencing reform. And this is by design

Because the Census Bureau counts prisoners where they are incarcerated in the decennial census, the locations of prisons may have significant implications for state and federal funding allocations, as well as political representation.”

As you can see, the implications of current day overrepresentation are clear as today as they were in the 18th Century. And get this, folks in many states that serve time lose their right to vote so imagine that, prisoners working as cheap labor, no right to vote, but get counted in the census to bolster the economic and political capital of places they don’t consider home. The irony is is almost laughable it wasn’t so dire.

So here we are getting ready for the 2010 census and I came across a letter composed by Eric Schneiderman, a New York State Senator and Tedra Cobb, a member of the St. Lawrence County Legislature that called on the US Census Bureau to collect the home addresses of incarcerated persons in preparation for the 2010 Census. Excerpts from the letter are below.

Counting people in prison at their pre-incarceration address is essential for compliance with the “One Person, One Vote” rulings of the Supreme Court, which require that legislative districts at every level of government contain equal numbers of residents in order to ensure fair and equal representation for all. The Census is uniquely suited to perform this function, which will help us better serve our constituents, our states, and our country.

Currently, the Census Bureau includes everyone housed in federal, state, and local prisons in its count of the general population of the Census block that contains the prison. State laws, however, often define residence as the place where one voluntarily lives. Many states also have constitutional clauses or election law statutes that explicitly declare that incarceration does not change a residence. Prisoners therefore remain legal residents of their pre-incarceration addresses, and in situations where they retain voting rights, they send absentee ballots to their home districts. Unfortunately, the current census methodology opts to disregard this, instead counting a significant proportion of our 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.

In our letter, we asked the Census Bureau to permanently eliminate this problem by counting people in prison as residents of their home addresses. Recognizing that time was short, we asked the Bureau to implement, as an interim solution, the recommendation of the National Research Council, and publish a special version of the PL94-171 redistricting data file for the prison population. Publishing detailed block-level counts of prison populations would empower legislators to remove those populations prior to redistricting. New York has relatively good record keeping procedures tracking the home addresses of inmates, but it is ultimately the duty of the U.S. Census Bureau to provide this information in a usable format for State and County Legislators. Furthermore, not all states find themselves with the same level of resources to locally correct this failing on the part of the Federal Census Bureau.

Unfortunately, we did not receive a positive response from then-Director Kincannon. On November 20, 2007 Director Kincannon wrote that the Bureau was not intending to change its method of counting the prison population. His arguments were based on the Census Bureau’s 2006 report, “Tabulating Prisoners at Their Permanent Home of Record Address,” the findings of which were rejected by the Census Bureau’s own commissioned experts at the National Research Council later that year. The Director’s response also failed to address our request for a special version of PL94-171 to facilitate data correction.

Now I read the report that talked about “Tabulating Prisoners at Their Permanent Home of Record Address” and one of the reasons the Director cited as to why counting prisoners would be not be feasible and the excerpt from that report is below.

The estimated cost is approximately $250 million to interview all prisoners in all federal, state, and local correctional facilities and to process the address information reported by the prisoners. This is more than a 1,200 percent increase over the cost of enumerating prisoners in Census 2000. This cost does not include the development and field testing of interviewing, verification, or validation procedures.

So basically you are telling me that it is going to cost $250 million to get democracy right in America when we spend $341.4 million per day in Iraq!!!!!!! I am going to connect with Eric Schneiderman and Tedra Cobb this week to see what steps can and should be taken to help correct this injustice. Stay tuned and spread the word.

Stay up fam,

Brandon Q.


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3 responses to “The 5/3 Compromise”

  1. Walter Echols says :

    Excellent article. I was aware that there was some accounting of inmates regarding food but not aware how the system was manipulating the count in total to affect budgets and how services that are based on the census count is affected. I worked in the system in Ohio but was never close enough to know all the ramifications of the inmate census count. This is the type of problem the organization called the National Association of Blacks in Criminal Justice should be concerned about. They have many persons in very responsible positions that should have knowledge and access to that information.

  2. Brandon Q. says :

    Thanks Walter,

    I really appreciate your comment sir and given the electoral significance of Ohio, (2004 Presidential) the census count in 2010 could allow whichever party dominates the state legislature to to redraw the political boundaries that make it favorable for their party at the state and national level. I have a question, did you work in corrections during 2000 and if so, did you ever interact with officials from the census bureau?

    Thank you for pointing me to the Nat’l Assn of Blacks in Criminal Justice because their work will be critical in leveraging pressure on the Census Bureau to change their practices.

    I was just thinking about how the growth in the prisons result in local communities clamoring over each other to either a) maintain the prisons they have or b) build new prisons, all in the name of economic development. How was your experience (if any) with local elected officials and their interest in making sure your facility continued to serve as an engine for economic growth?

    Thanks again and stay up fam,

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