Dissenting judges criticize state’s denial of last rites for death-row inmate

Tuesday, April 11, 2000

American Indian...
American Indian Movement members from San Jose, Calif., beat drum in protest outside San Quentin Prison in California on March 14 before execution of Darrell Rich.

Four federal appeals court judges are criticizing California’s attorney general and prison officials for denying a death-row inmate’s request to participate in a final sweat lodge ceremony. The four judges also chastised their fellow judges for refusing to hear the San Quentin inmate’s appeal.

Late last week the four judges offered written dissents condemning the California Department of Corrections for ignoring the now-deceased inmate’s religious liberties.

“Because I believe that neither the Constitution nor human decency permits us to deny a condemned man his last rites based on the implausible security concerns advanced by the state, I dissent from the refusal” of the court to hear an appeal, wrote Judge Stephen Reinhardt.

Early last month, Darrell Keith Rich, then a death-row inmate, asked a federal district court to allow him to take part in a sweat lodge ceremony before his execution. Rich testified that taking part in the ceremony would purify his body, mind and soul and make amends for those he harmed. On March 13, the district court denied his request and a day later a three-judge panel of the 9th Circuit upheld the denial. Rich then asked the entire 9th Circuit to hear his case, but a majority of the court’s 24 active judges voted against a rehearing. Rich, placed on death row 20 years ago for the murder of four women, was put to death by lethal injection on March 15.

Joining Reinhardt were Judges Alex Kozinski, Harry Pregerson and Kim Wardlaw.

Reinhardt said Rich had “made a credible showing” that his Native American religion required the sweat lodge purification and the state’s arguments that permitting Rich to engage in the practice would create great security risks were specious.

In arguing on behalf of prison officials, state Attorney General Bill Lockyer cited a state regulation that requires death-row inmates to be placed in “Maximum A” custody, which means the inmates must be under “direct and constant supervision.” Lockyer testified before the district court that the regulation made it impossible for Rich to participate in the religious ceremony.

Reinhardt, however, said that the regulation failed to “provide a reasonable basis” for denying Rich’s request for a “one-time departure” from the regulation.

“Officials are constitutionally obligated to accommodate the condemned prisoner’s fundamental religious needs at the same time they make the necessary preparations for his execution,” Reinhardt wrote.

Lockyer also testified that Rich’s religious beliefs were “incapable of either proof or refutation,” and “secular authorities, such as the prison warden, cannot be required, on faith, to accept risks to prison security and the personal safety of others, in order to satisfy these kinds of belief.”

Reinhardt said that the state’s attorney general held “a bizarre attitude toward the subject of religion in general and Native Americans’ beliefs in particular.”

Jeanne Woodford, acting warden of the San Quentin prison, also testified that allowing Rich his last rites would create an appearance of favoritism which “could lead to resentment” among the prison population. Reinhardt said that argument “approaches the absurd.”

“I doubt that many inmates at San Quentin would have envied Rich the treatment he received at the hands of the state on March 15th, even if prison officials had allowed him to prepare for his death in a spiritually proper way,” Reinhardt wrote.

Reinhardt concluded that his colleagues on the court had “elevated ordinary and manageable security concerns over Rich’s extraordinary need to exercise his fundamental religious beliefs before his execution.”

“If the state is to perform the function of ending people’s lives (which may or may not be a proper function for it to perform), the least it can do is to allow those it kills to comply with the tenets of their religion before it dispatches them to whatever follows. Certainly it should not deny them the right to engage in their most fundamental religious rites by asserting the argument that religious beliefs are ‘incapable of either proof or refutation.’ ”

In a separately written dissent, Kozinski said the attorney general’s arguments against Rich’s request “cast doubt on the professional candor of the lawyers who presented them.”

Nathan Barankin, attorney general spokesman, said Lockyer would not issue a written response to the dissenters’ criticisms. However, Barankin did say that the attorney general was pleased that a majority of the 9th Circuit judges agreed with his arguments not to hear Rich’s appeal.

“No one disputes that the warden has the authority to make these types of decision based on security threats,” Barankin said. “What the dissenters seem to believe is that the security threats were not sufficient to warrant the warden’s decision. We obviously disagree with the dissenters and a panel of the circuit as well as a majority of the judges agreed with us.”