A few weeks ago Darrell Keith Rich, also known as Young Elk, was executed at San Quentin State Prison in California. Whether or not any state should be in the business of killing its own citizens (a subject for another day), Rich -- who murdered at least three women and an eleven-year-old girl -- seems to have been a good candidate for society's harshest punishment. But the circumstances surrounding his execution raise important questions about just how far the state should go in accommodating the religious beliefs and practices of its prisoners.

Some time after being assigned to Death Row twenty-two years ago, Rich adopted the name "Young Elk" to signal a renewed identification with his Native American heritage (Rich claimed to be one-fourth Cherokee). As his execution date approached, Young Elk asked the prison to allow him to take part in a sweat lodge ceremony as a means of purification and atonement.

Prison officials denied his request. At first they claimed that permitting the sweat lodge ritual would pose an unacceptable security risk. San Quentin's sweat lodge (yes, it already had and has one) sits in an exercise yard not usually available to inmates from the prison's maximum security wing. In addition to the extra hours of supervision required, officials worried that the prisoner might be tempted to make other than spiritual use of the hot rocks and shovel required to perform the sweat lodge ceremony.

Young Elk and his attorneys sued the state, contending that his time in the sweat lodge was necessary "to prepare himself spiritually for death and entry to the spirit world." The District Court disagreed, siding with the warden and the California attorney general. After the 9th Circuit Court of Appeals and the U.S. Supreme Court refused to review the case, Young Elk was executed without having undertaken his ritual.

In the process of defending the warden's decision, state attorneys offered other reasons for denying the inmate's request. They had argued that the condemned man's religious beliefs were "incapable of either proof or refutation," and that "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." In so arguing, the state seemed to suggest that only those people somehow proven "sincere" in their religious beliefs were worthy of any special consideration. Making exceptions to prison rules such as that requested by Young Elk, state attorneys suggested, might encourage other inmates to view this as "favoritism" and demand the same.

Last week four judges on the 9th Circuit Court of Appeals published their dissent from the majority's decision not to hear Young Elk's appeal. Justice Stephen Reinhardt went right to the heart of the matter: "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 to hear this case."

So ridiculous did Reinhardt find the state's reasoning, he questioned the "professional candor" of those who argued the state's case. The inmate had agreed to be restrained in the sweat lodge, taking care of the prison's already specious concerns about security. And who was the state to question a person's religious sincerity, and on that basis deny access to a final ritual? "One wonders," the judge wrote, " whether the Attorney General would make the 'incapable of proof or refutation' argument regarding the last rites of major religions. After all, no religious beliefs of which I am aware are susceptible to objective proof or refutation."

Reinhardt concluded his spirited dissent: "If the state is to perform the function of ending people's lives ... 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" (1).

Young Elk necessarily ceded some of his rights upon incarceration, but there's no reason why the free exercise of his religion needed to be one of them. Indeed, the measure of a country's commitment to principle can often be judged by how it treats the powerless. The courts have already proven themselves insensitive to -- if not downright ignorant of -- Native American beliefs and practices (2). To perpetuate this insensitivity, as the case of Young Elk and Justice Reinhardt's dissent makes clear, can be nothing short of metaphysical arrogance.

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