Sentence Served and No Place to Go: An Eighth Amendment Analysis of “Dead Time” Incarceration

Christopher B. Scheren | January 21, 2024

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses and indigency lies a sharper injustice. Indigent people convicted of sex offenses with no family or friends who are willing and able to house them face extended imprisonment, referred by them as “dead time” incarceration, while wealthier people convicted of sex offenses roam freely.

Such a system violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In Robinson v. California, the Supreme Court held that it is cruel and unusual to punish an individual on the basis of “status.” Subsequently, federal circuit court decisions applied this principle to invalidate laws that punish individuals for being homeless. Then, federal district courts in Illinois and New York considered invalidating interpretations of residency laws and policies that caused the consequential reality of dead time incarceration in cases brought by indigent people convicted of sex offenses, but they reached very different conclusions. This Note argues that continued incarceration for indigent people convicted of sex offenses because they cannot secure approved housing constitutes a punishment based on their indigent status, thereby violating the Eighth Amendment’s prohibition.