Religious Use of Tobacco in Prisons Up in the Air Following Court of Appeal Ruling

Gregory Rhoades is a Native American prisoner incarcerated at Calipatria State Prison. Rhoades filed a habeas petition claiming that prison officials denied Native American prisoners the right to practice their religion by banning the use of ‘straight tobacco’ during religious ceremonies.

In his Petition, Rhoades pointed out that even though CDCR banned the general use of tobacco in 2004, Native American inmates were allowed to use tobacco in religious ceremonies. However, in 2014, prison officials enacted a new policy which required Native Americas to use “kinnikinnick,” a tobacco-and-herb mixture.  Rhoades alleges that “[t]here are no alternatives that can replace the use of ‘straight tobacco’ for the making of prayer ties . . . .” He further alleges that Native American prisoners were permitted to use straight tobacco during religious ceremonies for 10 years after tobacco was prohibited in prison, with no problems.

The prison responded by stating that like other contraband, possession of tobacco creates an issue of safety and security for the entire institution, and there was a significant interest in minimizing health care costs, which is accomplished by prohibiting tobacco use. Further, the prison disputed “that the required use of kinnikinnick instead of straight tobacco burdens, let alone substantially burdens, Rhoades’s ability to exercise his religious beliefs.”

An Imperial Court Superior Court Judge agreed with Rhoades, and ruled that the ban violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).[1]  The Superior Court did not hold an evidentiary hearing, but ruled there was a “dearth of evidence” that kinnikinnick was appropriate for Native American ceremonies.  It also noted that CDCR uses sacramental wine in its religious ceremonies, and prison officials failed to show why similar procedures couldn’t be used for ceremonial tobacco.

However, on March 22, 2017, the California Court of Appeal held that the trial court improperly granted the habeas petition without holding an evidentiary hearing on disputed factual issues. The Court of Appeal noted that under RLUIPA, the inmate bears the initial burden of proving that the challenged policy implicates his religious exercise.  Then the burden shifts to the government.  This was the framework that was applied in the Supreme Court case Holt v. Hobbs, where an Muslim inmate challenged a prison’s ban on beards longer than one and half inches.

The Court of Appeal instructed the trial court to hold a hearing to determine whether Rhoades’ religious exercise is substantially burdened by the policy prohibiting the use of straight tobacco in religious ceremonies. If Rhoades meets that burden, then the trial court shall consider whether the policy against the use of straight tobacco constitutes the least restrictive means of furthering a compelling governmental interest.

This decision is important because it underscores that an inmate initially has the burden to show that a policy substantially burdens his religious beliefs. It also reinforces that when there is a dispute of issues, prison officials should have an opportunity to present evidence at a hearing before habeas relief is granted to an inmate.

[1] RLUIPA prohibits a state or local government from implementing measures that “substantially” interfere with an incarcerated individual’s religious practice unless it can show that the measure is the least restrictive one possible that will still allow it to maintain its interests.


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