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April 12, 1996 - From The Jewish Bulletin http://www.jewishsf.com/bk960412/sfadeath.htm
Jewish death row inmate fights for religious freedom
TERESA STRASSER: Bulletin Staff
Now that Jewish death-row
inmate Chay'im Ben-Sholom has won the right to wear a yarmulke
outside his San Quentin
State Prison cell, he is fighting for kosher food.
Since winning his case against
the prison and the State Department of Corrections Feb. 23,
Ben-Sholom has been allowed
to wear his yarmulke freely, according to Arnold Erickson, a staff
attorney with the nonprofit
Prison Law Office in San Rafael.
Erickson, who represented
the condemned inmate, says the victory in the yarmulke case should pave
the way for more religious
freedom for the Orthodox prisoner, who wants meals that comply with
Jewish dietary laws.
Ben-Sholom must first prove
he has exhausted all administrative channels at the prison before taking
his battle for kosher food
to the courts. Erickson, however, doesn't think this conflict will need
to go
that far.
"I would hope a court action
isn't necessary, that the prison administration would seriously consider
any requests he makes and
come to terms with their duties," said Erickson. "My understanding is that
many other jails are beginning
to provide kosher food in compliance with RFRA [the Religious
Freedom Restoration Act]."
The 1993 federal statute
-- which rejuvenated Ben-Sholom's yarmulke fight -- set a standard
requiring government agencies
to use the least restrictive alternative in the case of issues regarding
security or other regulations.
The act has been used by prisoner advocacy groups to increase
religious freedom in institutions
nationally.
Aleph Institute, a Florida-based
group that lobbies on behalf of Jewish prisoners, has helped Jewish
inmates obtain kosher food
in New York, Kansas, Arizona and parts of Oklahoma.
Robert Burns, Aleph's prisoner
service coordinator, worked with Ben-Sholom on the yarmulke case
and hopes to set a precedent
for kosher food in California prisons.
"How can you say to someone,
`You can only practice half of your religion?' Observant Jews are
mandated to eat kosher food,"
explained Burns. "It means a lot to him. He has his religion, and not
much else."
Ben-Sholom, 30, has been
incarcerated since 1985 for murdering a 58-year-old woman during a
robbery attempt in Visalia.
He had been asking to wear his yarmulke since 1989 but was told by
prison officials that the
head covering posed a threat to security when worn in the visiting room.
It was an argument used in
court last month by Brett Morris, deputy attorney general of California
and counsel for the prison.
"The visiting room on death
row is a vulnerable security-conscious location," summarized Morris in
a
phone interview from his
San Francisco office. "It's the portal to the outside world. All kinds
of
contraband can be attached.
Things can be woven in them, fishing line or some useful means of
escape can be exchanged."
But the court failed to see
the security risk, ruling that San Quentin's ban on yarmulkes was overly
restrictive.
"Nowhere do prison officials
contend that a yarmulke is difficult to search," said Marin County
Superior Court Judge Lynn
O'Malley Taylor.
The court received documentation
from Rabbi Alan Lew of the Board of Rabbis of Northern
California, de-scribing
the religious significance of head covering; an actual yarmulke was attached
to
the petition in case the
court had not seen the Jewish item.
With just two weeks left
to appeal the court's decision, the prison has not yet done so. Still,
Morris
contends the ruling poses
a threat.
"If you have 100 inmates,
with 100 different head coverings, how do you accommodate all of them
and still run a secure institution?"
said Morris.
The lawyer admits, however,
that providing kosher food will not pose a security risk for the
maximum security facility,
but may cause cost and food-ordering problems for the prison.
Ben-Sholom, who changed his
name from Ryan Marshall while in prison, will not only have to prove
keeping kosher is central
to his religious beliefs, he will also have to prove he's an observant
Jew.
Though he was born Jewish,
the inmate only became observant while serving time on death row.
Ben-Sholom was the state's youngest death-row inmate when he was sent there in 1986.
As his fight for kosher food
gets underway, Ben-Sholom's appellate lawyers are still fighting for his
life; a stay of execution
is currently in effect, and one of his attorneys, Fresno-based Patience
Milrod,
said she has filed a challenge
to his murder conviction on 30 different grounds.
"His lawyer didn't introduce
psychological evidence," said Milrod, who is also alleging jury
misconduct in the case.
As for Ben-Sholom's desire
for kosher food on death row, Milrod said her client is "sincerely a Jew,
and he should be able to
be one where he is."
April 12, 1996 - Jewish Bulletin http://www.jewishsf.com/bk960412/sfadeath.htm
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