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22 J.L. & Pol. 135 (2006)
When to Turn to Turner - The Supreme Court's Schizophrenic Prison Jurisprudence

handle is hein.journals/jlp22 and id is 143 raw text is: Note: When to Turn to Turner? The Supreme Court's
Schizophrenic Prison Jurisprudence
In the landmark 1987 case Turner v. Safley,t the Supreme Court
declared, [W]hen a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to legitimate
penological interests.     Academics commonly suggest that Turner marked
a new era in prison jurisprudence, a return to the hands-off' approach the
Court utilized before the 1960s.3 This approach was marked by judicial
deference to prison administrators. Academics generally separate the
Supreme Court's prison jurisprudence into three eras: the hands-off
period before the mid-1960s, during which time courts assumed that
prisoners were slaves of the state;'4 the rights period, lasting from the
mid-1960s until the late 1970s or mid-1980s, during which time the courts
increasingly recognized and protected the constitutional rights of prisoners;
and a deference period, beginning with the Turner decision, that signaled
a judicial retreat from the protection of prisoners' rights.5 In a sentiment
typical of the academic view of Turner, one law review article suggests
that The Turner Standard of scrutiny is 'so meager and deferential' that it
has revived the hands-off doctrine.,6 Erwin Chemerinsky finds that today,
there is an almost complete abdication of judicial protection of individual
Turner v. Safley, 482 U.S. 78 (1987).
2 Id. at 89.
3 See, e.g., Lisa D. Levinson, Prisoners'Rights, 75 DENY. U. L. REv. 1055, 1060 (1998) (finding
that in the 1980s, the Court returned to a more conservative, 'hands off approach to prisoners'
rights.); Hedieh Nasheri, A Spirit of Meanness: Courts, Prisons and Prisoners, 27 CUMB. L. REV.
1173, 1173 (1997) (The high court's message to the lower courts is clear: do not micromanage the
penitentiaries; defer to state officials and prison administrators.); James Robertson, The Majority
Opinion as the Social Construction of Reality: The Supreme Court and Prison Rules. 53 OKLA. L.
REv. 161, 163 (2000) (This Article argues that the Supreme Court has constructed as social reality a
set of assumptions about imprisonment that renders inmates unworthy of meaningful constitutional
safeguards.); Cheryl Giles, Note, Turner v. Safley and its Progeny: A Gradual Retreat to the Hands-
Off' Doctrine?, 35 ARIZ. L. REv. 219, 220 (1993) (asserting that the Turner test does not adequately
protect inmate rights in all circumstances and that it is a step backwards toward the historical 'hands
off approach of judicial (non)protection of prisoners' rights.).
4 Daniel J. Solove, Faith Profaned.: The Religious Freedom Restoration Act and Religion in the
Prisons, 106 YALE L.J. 459, 466 (1996) (noting prisoners were considered the slave of the state)
(quoting Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871)).
5 See, e.g., Levinson, supra note 3, at 1057-60 (describing the three periods); Nasheri supra note 3,
at 1175-85 (same).
6 Owen Rarric, Kirsch v. Wisconsin Department of Corrections: Will the Supreme Court Say
Hands-Off Again?, 35 AKRON L. REV. 305, 319 (2002) (internal citation omitted).

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