Jewish death row inmate fights for religious freedom

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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."