The Right Opens Up a New Front in the Census War: Criminal Records

Republicans appear poised to open a new front in the ongoing census wars, pushing to add a new question that inquires about the criminal record of respondents. The move comes amid a parallel effort to question residents about their citizenship status in 2020. Both questions would have the intended effect, Democrats charge, of suppressing participation, thereby shrinking Democratic representation.

In a hearing before the congressional Joint Economic Committee on Wednesday, a witness from the American Enterprise Institute, or AEI, an influential neoconservative think tank, put forward the notion that the Census Bureau start asking about criminal records. Such a question would affect a huge amount of people, as the United States has the largest prison population in the world, and according to federal data, roughly 30 percent of Americans have a criminal record.

AEI’s Nicholas Eberstadt framed the proposal in terms of some deeply held concern about the victims of mass incarceration. “It is shocking — I would dare say shameful — that our statistical system should so entirely neglect the plight of this huge, stigmatized, and disadvantaged population in our society,” he said in his testimony.

“We have a chance to end this statistical darkness,” he said. “Including just one or two questions on criminal justice system history in the American Community Survey could end this not-so-benign neglect.”

Though he framed it as a matter of having accurate data to help understand issues around mass incarceration, Democrats say the questions are an attempt to intimidate vulnerable populations, particularly communities of color and people who are poor, to deliberately undercount them in the census and hurt them electorally. Experts at the Census Bureau itself have warned against the citizenship question, saying that it would harm accuracy.

The official population count is used to allocate congressional seats, Electoral College votes, and billions of federal funds that go to roads, schools, and other needs.

“Getting the count wrong would be costly with far-reaching effects on nearly every segment of the population and on nearly every industry in our economy,” Rep. Carolyn Maloney, a New York Democrat and the vice chair of the committee, said in her opening statement. “We would be misallocating resources through misguided business investments and poorly targeted government expenditures. We would be using flawed data as the basis for making and evaluating decisions. And we would be doing this for a decade.”

One of the Democratic witnesses, Howard Fienberg, vice president of advocacy at the Insights Association and co-director of the Census Project, said they are “extremely concerned” about accuracy given the cancellation of census field testing in remote and rural areas, the potential drop in response rate due to the citizenship question and a general distrust in government, and the administration’s plan to not spend all available resources allocated by Congress for the fiscal year.

Similar to how AEI is framing the criminal record question, the Trump administration framed the citizenship question as wanting to “permit more effective enforcement” of the Voting Rights Act and “protect minority population voting rights.”

House Democrats during an Oversight Committee hearing in March confronted Commerce Secretary Wilbur Ross for lying about the process behind his decision to add a question about citizenship to the census. The Supreme Court is expected to rule on the citizenship question in June.

In his testimony, Eberstadt said we know “almost nothing” about the country’s sentenced and arrested populations. “Age, sex, ethnicity, living arrangement, family situation, income, educational profile, health status, and all the rest of the data the U.S. federal statistical system collects for our national population,” he said, “cannot be cross-referenced by ‘arrest status.'”

“Irrespective of future policing and judicial policies, the population of arrested Americans and Americans with a felony is on track to continue to grow for many years to come — quite possibly for decades to come,” his testimony concluded.