Now, the U.S. 6th Circuit Court of Appeals is weighing whether to reinstate a suit brought by those inmates and two others challenging restrictions on pastoral visits to condemned inmates. A three-judge panel in Cincinnati heard oral arguments Friday concerning the correct balance of religious freedom for the condemned versus the safety and security needs of the prison.
U.S. District Judge Thomas B. Russell ruled in March 2013 that prison officials were justified in temporarily suspending pastoral visits at the maximum security Kentucky State Penitentiary in Eddyville for security reasons and to bring the prison in line with state prison regulations. Russell also turned away a request from three inmates six-time convicted killer Robert Foley, two-time convicted killer Roger Epperson and Vincent Stopher, condemned for killing a Jefferson County Sheriff's deputy who told prison officials that their religious preference is Native American and sought to have the prison erect a sweat lodge.
While the court is weighing those issues, the oral arguments focused exclusively on the challenge brought by the three inmates seeking to practice Native American rituals.
Attorney Jacob Roth, arguing on behalf of the inmates, said prison officials didn't have good reasons for turning down the construction of a sweat lodge or allowing Foley, Stopher and Epperson to spend their own money to purchase traditional foods, such as buffalo meat. Roth noted that the inmates even proposed an indoor sweat lodge to alleviate security concerns by prison staff.
"The warden's concern is someone might ask for this at other prisons if you ask for it here," Roth said. "Courts are not supposed to be determining what parts of a religious practice are important from a theological perspective."
Stafford Easterling, an attorney for the Kentucky Department of Corrections, said security concerns, particularly with death row inmates, are paramount at the facility. Easterling said no other state allows sweat lodges for death row inmates. Fire, heated stones and infrared machines are needed to create the heat for a sweat lodge with no way to monitor what happens inside, Easterling said.
"I think there's no question a sweat lodge creates significant concerns where security officers aren't allowed to enter," Easterling said. "Sweat lodges have been deemed ... essentially dangerous objects."
Easterling noted that Kentucky is in the midst of reviewing new regulations for sweat lodges and other specialized religious requests, but the policy hasn't been finalized yet.
"We're going through a fairly extensive safety and security review," Easterling said.