Rich

Dissent by Judge REINHARDT; Dissent by Judge KOZINSKI; Dissent by Judge WARDLAW.

Rehearing en banc denied.

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 rehear this case en banc.

Shortly after midnight on March 15, 2000, officials from the California Department of Corrections (CDC) executed Darrell Keith Rich at San Quentin State Prison. On March 8th, Rich had filed an action under 42 U.S.C. § 1983 seeking to take part in a sweat lodge ceremony prior to his execution. 1 Rich, a Native American *962 man, believed that by purifying his body, mind, and soul, this ceremony would allow him to make amends for the people he harmed on earth and would prepare him to cross over from this world to the next. It was the equivalent to him of other religions’ last rites.

On March 13th, the district court denied Rich’s request. A panel of this court affirmed the denial the following day. A sua sponte call for an en banc vote was made, but a majority of the active judges voted to deny a hearing. The Supreme Court likewise refused…

dissenting from the order denying rehearing en banc:

Darrell Keith Rich was a very bad man. For the horrible crimes he unquestionably committed against innocent girls and women, mothers and daughters; for the suffering he caused them and their families; for the terror he inflicted on the people of Cottonwood, he amply deserved to die. But no man should be sent to his Maker without being allowed to take the spiritual steps he considers necessary to prepare for the event. A decent respect for the humanity of even the worst among us obligates us to accommodate such rituals where doing so will not impair serious governmental interests. This obligation is not diminished because the ritual does not involve a minister, a priest or a rabbi.

As explained in Judge Reinhardt’s dissent, the state made no credible showing that its interests would be impaired by allowing Rich and his spiritual advisors to participate in the sweat lodge ceremony. Indeed, the arguments contrived by the Attorney General to defeat Rich’s request cast doubt on the professional candor of the lawyers who presented them.

An imminent execution sorely tests the limits of professionalism among lawyers. Exaggerated…

dissenting from the order denying rehearing en banc:

I join the dissents of Judges Reinhardt and Kozinski, but write separately to emphasize the concern expressed by both of my colleagues as to the State’s representations to the Court. As Judge Reinhardt notes, after the panel issued its opinion, the press reported a statement by “state officials” that Rich’s execution would not have been delayed in any case by a sweat lodge ceremony because San Quentin could “swiftly arrange” the ritual “on-site.” Michael Kahn, Court Denies Calif. Killer’s Sioeat Lodge Appeal, Reuters English News Service (Mar. 14, 2000). This very issue was earlier raised in the district court, and the State’s response can only be *966 characterized as evasive, at best, and disingenuous, at worst.

Rich’s counsel had heard rumors that the State was preparing to proceed with the sweat lodge ceremony in a manner that would neither delay the scheduled execution nor pose a security risk. He noted his understanding that a sweat lodge was being prepared for 3 p.m. that day, and the court inquired as to the significance of that fact to its decision:

The State failed to directly answer the questions Mr. Thompson…