dissenting from the order denying rehearing en banc:
I join the dissents of Judges Reinhardt and Kozinski, but write separately to emphasize the concern expressed by both of my colleagues as to the State’s representations to the Court. As Judge Reinhardt notes, after the panel issued its opinion, the press reported a statement by “state officials” that Rich’s execution would not have been delayed in any case by a sweat lodge ceremony because San Quentin could “swiftly arrange” the ritual “on-site.” Michael Kahn, Court Denies Calif. Killer’s Sioeat Lodge Appeal, Reuters English News Service (Mar. 14, 2000). This very issue was earlier raised in the district court, and the State’s response can only be *966characterized as evasive, at best, and disingenuous, at worst.
Rich’s counsel had heard rumors that the State was preparing to proceed with the sweat lodge ceremony in a manner that would neither delay the scheduled execution nor pose a security risk. He noted his understanding that a sweat lodge was being prepared for 3 p.m. that day, and the court inquired as to the significance of that fact to its decision:
Mr. Thompson [Counsel for Rich]: [I]t’s our understanding from talking to spiritual advisors that the sweat lodge is being prepared and will be ready for a sweat to occur today at 3 p.m. So the concerns with respect to whether or not it’s a security problem or anything else, I think, perhaps fade if that, in fact, is occurred, [sic]
The Court: So what’s the significance of the fact that a sweat lodge is being set up and may be operative even today?
Mr. Thompson: It’s being readied for the sweat lodge that Mr. Young Elk [Rich] would attend, is our understanding. It is prepared. It is ready to go. There is also word from the prison that we understand that there’s a way in which there could be a temporary sweat lodge that can be built inside death row’s yard area so that a sweat lodge could be created at that point as well.
The State failed to directly answer the questions Mr. Thompson raised about the sweat lodge, which, if answered in the affirmative, would have mitigated the State’s concerns about safety and timeliness. The State’s indirect response conveyed the impression that it did not have a secure, swift and reasonable means at hand for providing the ceremony. The State’s attorney represented:
... Plaintiffs counsel has made several references to the fact that the sweat lodge is prepared and ready to go. I’m not sure what he’s referring to, and there isn’t any evidence in the record that that, in fact, has been done.
But what we can tell the court is on Saturday, a special sweat lodge ceremony was performed by the spiritual advis-ors on inmate Rich’s behalf, and his family and prayers were — -his family at that time. So that may very well be why the sweat lodge looks like it’s ready, because it was, in fact, used on Saturday for a ceremony in inmate Rich’s honor.
(emphasis added). The deputy attorney general’s statement may have been literally correct, but if in fact a sweat lodge ceremony could have been readily performed without creating a security risk or a delay in execution, the district court and the court of appeals should have been informed. Surely, the State’s representative should have known whether her Turner arguments were factually based before making them to the court.
Because of the accelerated process by which we must consider issues raised in impending executions, the state must be forthright and forthcoming about the feasibility of protecting the constitutional rights of a condemned inmate. We should be able to apply the “reasonableness” analysis required by Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), with confidence in the information we have been provided.
The State appropriately imposed the death penalty for the horrible crimes committed by Rich. But Rich did not raise any last-minute challenge to the propriety of his conviction or sentence; he simply requested his last rites in accordance with his religious beliefs. I therefore dissent.