Judge: SD prison tobacco ban curbs religion rights

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Associated Press

Posted on September 19, 2012 at 5:01 PM

Updated Wednesday, Sep 19 at 9:02 PM

SIOUX FALLS, S.D. (AP) — A federal judge ruled Wednesday that the South Dakota prison system's ban on tobacco in religious ceremonies substantially burdens Native American inmates' religious rights.

Chief Judge Karen Schreier ruled that even if state officials had asserted a compelling governmental interest, they did not prove that the complete ban was the least restrictive means available to further that governmental interest.

Schreier said in her ruling that inmates and officials should meet and propose an appropriate, narrowly tailored injunction, which should include revisions to the tobacco policy for inmates practicing the Lakota religion. She cited cases involving prisons in Missouri, Texas and Pennsylvania that allowed their inmates to use tobacco for religious purposes in ceremonies.

"This widespread allowance of tobacco in prisons lends substantial credence to plaintiffs' position that less restrictive alternatives to a complete ban on the use of tobacco in Lakota religious ceremonies is possible," Schreier wrote.

James Moore, the officials' attorney, said he was reading through the ruling and was not yet ready to comment.

The inmates' attorney, Pamela Bollweg, called the ruling a victory for the First Amendment and for religious freedoms.

"People who enter the prisons don't leave their religious freedoms at the door, and that's what she ruled," Bollweg said Wednesday night.

In their 2009 federal lawsuit against the South Dakota Department of Corrections, inmates Blaine Brings Plenty and Clayton Creek contended that the policy was discriminatory. The state said ceremonial tobacco inside the state penitentiary was becoming increasingly abused, and the policy was not overly restrictive because it allowed other botanicals such as red willow bark to be burned.

The Justice Department, in a brief filed in July, said the state's position ran contrary to the Religious Land Use and Institutionalized Persons Act and U.S. Supreme Court precedent.

The South Dakota prison system went tobacco-free in 2000 but made an exception for tobacco used in Native American ceremonies. Officials in October 2009 eliminated that exemption, saying tobacco was being sold or bartered and inmates had been caught separating it from their pipe mixtures and prayer ties.

Members of prison-based Native American Council of Tribes sued, arguing that for Native American prayer to be effective, it must be embodied in tobacco and offered within a ceremonial framework.

Brings Plenty and Creek in their suit said the policy change violated their U.S. constitutional rights ensuring that no prisoner be penalized or discriminated against for their religious beliefs or practices.

Bollweg said she's confident that the two sides can come up with a policy to address both the prison safety concerns and the inmates' religious rights.

"We know that there are policies out there that can accommodate this," she said.

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