Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny

42 Pages Posted: 23 Feb 2015

See all articles by David Shapiro

David Shapiro

Northwestern University School of Law

Date Written: February 20, 2015


The Supreme Court declared 30 years ago in Turner v. Safley that prisoners are not without constitutional rights: Any restriction on those rights must be justified by a reasonable relationship between the restriction at issue and a legitimate penological objective. In practice, however, the decision has given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host of arbitrary restrictions — including prohibiting President Obama’s book as a national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike, Maimonides, case law, and cat pictures. At the same time, the courts have had no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights, and RLUIPA demonstrates that a heightened standard of review can protect prisoners’ expressive freedoms without compromising prison security. It is time for the Court to revisit Turner.

Keywords: First Amendment, prisoners' rights, Turner v. Safley, RFRA, RLUIPA

JEL Classification: K10, K30

Suggested Citation

Shapiro, David, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny (February 20, 2015). Northwestern Public Law Research Paper No. 15-08, Available at SSRN: https://ssrn.com/abstract=2568132 or http://dx.doi.org/10.2139/ssrn.2568132

David Shapiro (Contact Author)

Northwestern University School of Law ( email )

United States

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