March 22, 2023

Undoing a Life Sentence

A judge resentenced Herbert Rice Jr., undoing a life sentence the U.S. Supreme Court ruled unconstitutional a decade ago. Rice, a citizen of the Colville Tribes, is one of about 2,500 U.S. prisoners held on life sentences without parole imposed when they were minors.


Underscore News

Editor’s note: This story is part of a series that illuminates the historical context of tribal law in the Pacific Northwest and examines cases where tribes and tribal members have used federal courts to secure recognition of their rights under federal law. The series also explores the growing authority of tribal courts and their role in exercising the inherent rights of sovereign Indigenous nations, as well as the way federal and state laws restrict tribal courts’ operation. Read the entire series here.

Herbert “Chief” Rice Jr. made no excuses March 21 for what he did 35 years ago when he was 17: the robbery-murder of Mike and Dorothy Nickoloff of Yakima.

Nickoloff family members spoke at Rice’s resentencing hearing on Tuesday in Yakima County Superior Court. Representatives for the Nickoloff family also read two statements on the family’s behalf.

The Nickoloff family supported the deal the prosecution and defense had struck to jointly recommend two concurrent sentences of 40 years – a reduction from life without parole. Judge Kevin S. Naught approved the deal in his ruling, which means Rice will serve five more years before he’s released at 57.

Rice, now 52, read a statement of his own, at one point facing the family and apologizing. (Matt Gill, a grandson, said the family did not want to comment beyond the statements made in court.)  

Gabriel Galanda, a Seattle-based lawyer, inmate religious rights advocate and citizen of the Round Valley Indian Tribes attended the hearing.

“Everyone recognized the pain Chief caused this family and the entire community -- pain that did not dissipate,” Galanda said Tuesday evening. “The tone in the courtroom was one of empathy and forgiveness and redemption. The courtroom was filled with all the emotions that you would hope would be present. Now, that pain can subside and be healed.”

Federal and state courts have found that sentencing someone to life without parole for a crime committed as a minor is cruel and unusual punishment. The U.S. Supreme Court ruled over a decade ago that such sentences are unconstitutional for youth younger than 18, regardless of the circumstances. Even when a juvenile is convicted of murder, the court has said a judge must consider their age when determining an appropriate punishment.

During his 35 years in prison, advocates say Rice has walked a consistent path of atonement. He organized the first post-Covid powwow at the Washington State Penitentiary in Walla Walla. He also advocates for inmates’ religious rights and mentors younger prisoners, to whom he is known as Chief – more for his leadership than his Indigenous heritage.

“He’s done everything you would want an Indigenous man to do traditionally to attain spiritual rehabilitation and atone for the mistake that he made,” Galanda said in an earlier interview. “He has set an example for countless Indigenous men who have also made mistakes, and particularly young Indigenous men who may not have known any traditional religious way of life until they met Chief in state prison.”

On Sept. 8, 75 guests and 37 Indigenous prisoners attended the first powwow held at the Washington State Penitentiary in three years. Organized by Herbert Rice Jr., the tradition was halted during the COVID-19 pandemic. Photo by Jarrette Werk/ Underscore News

The Road to Resentencing

The U.S. Supreme Court ruled in 2012 in Miller vs. Alabama that mandatory sentences of life without parole for juveniles violate the Eighth Amendment protection against cruel and unusual punishment. Two years later, the Washington legislature approved a law, known as the Miller Fix, to establish new guidelines for the sentencing of juveniles.

In 2016, the U.S. Supreme Court added that Miller vs. Alabama applies retroactively, meaning inmates sentenced as juveniles to life without parole at any time prior to the ruling can argue for resentencing. Then in 2018, the Washington Supreme Court ruled juvenile offenders can be sentenced to life, but not without the possibility of parole.

That means about 2,500 inmates across the U.S. are entitled to resentencing hearings, according to the Youth Sentencing & Reentry Project in Philadelphia, Pennsylvania. In Washington state, 13 people are serving life without parole who were sentenced as juveniles, according to Tobby Hatley, spokesman for the Washington Department of Corrections.

But resentencing hearings for those prisoners are not automatic. Inmates who believe they are eligible must file a request for a hearing, according to the Washington Association of Criminal Defense Lawyers.

Rice had been trying for a resentencing hearing since 2016. It’s a process that was made more difficult because of the COVID-19 pandemic.

Rice’s attorney, Richard Smith of Yakima, said in an earlier interview that Rice had a good chance for a reduced sentence. “He’s a classic case for rehabilitation – that you can be rehabilitated – and he’s hopeful the court will recognize that,” Smith said.

Similar Cases

Resentencing of childhood offenders who are now adults has been put to the test in Washington state, with mixed results.

Timothy Haag was convicted in 1995 of killing a 7-year-old neighbor when he was 17. His life sentence was reduced in 2018 to 46 years, after the court noted Haag’s accomplishments while in prison and his remorse for his crime, and heard expert witnesses who determined he “is not irretrievably depraved nor irreparably corrupt.” Members of the victim’s family, however, opposed the reduced sentence, according to court documents.

Haag’s lawyers appealed the new sentence, arguing that a 46 years is still tantamount to a life sentence, since that would make him eligible for release in 2041 when he’s 63.

The Washington Supreme Court agreed and in December 2021 remanded the case for a new resentencing hearing, writing that the lower court didn’t adequately consider mitigating circumstances of Haag’s youth when the crime was committed.

But the Washington Supreme Court ruled differently last year in the case of Tonelli Anderson.

Anderson was 17 in 1994 when he fatally shot two people during a drug buy. A judge in King County Superior Court sentenced him to 61 years. Anderson’s lawyers argued that was equivalent to a life sentence.

After the 2012 U.S. Supreme Court ruling, Anderson asked the courts for a reduced sentence. The Washington Supreme Court refused, affirming his 61-year sentence. Despite his rehabilitation while in prison, the justices wrote, the trial court “appropriately determined that Anderson’s crimes do not reflect youthful immaturity, impetuosity, or failure to appreciate risks and consequences.” The lower court had determined that Anderson’s actions were premeditated, noting that he had written to friends about the crime and the sentence he could face if arrested and convicted.

Herbert Rice Jr. (second from right) appears for a resentencing hearing before Yakima County Superior Court Judge Kevin S. Naught on Tuesday, March 21, 2023. (Photo courtesy of Gabriel Galanda)

Robbery, murder and redemption

In an earlier interview, Rice said he hoped his upcoming hearing would follow the trajectory that Haag’s case did.  

On Jan. 7, 1988, Rice and his friend Russell McNeil fatally stabbed Mike and Dorothy Nickoloff in the elderly couple’s Yakima home after asking if they could use the couple’s telephone. The boys stole the Nickoloffs’ television sets, which they later sold, and cigarettes. Mike Nickoloff was 82. Dorothy Nickoloff was 74.

McNeil pleaded guilty. Rice was found guilty at trial.

At his sentencing, Rice tearfully apologized to the Nickoloff family and was “met with their anger,” the Yakima Herald-Republic reported at the time. Yakima County Prosecutor Joseph Brusic, who did not respond to calls from Underscore News, told KIMA-TV Yakima in 2016 that the robbery murders were “one of the worst crimes to ever take place [in Yakima County]. This brutal killing, double homicide, is extremely heinous."

Advocates say the 52-year-old Herbert Rice is a different person than he was at 17. Rice credits his maturity and spiritual growth to the religious traditions of his culture.

“Not every inmate or Indigenous inmate is prepared to reenter society,” said Galanda, the Seattle-based lawyer and inmate religious rights advocate. “Chief is more prepared than anybody I have ever met to succeed upon returning home and reentering society.”

Galanda leads an Indigenous inmate rights organization, Huy – pronounced “Hoyt,” a Lushootseed word that means “See you again/we never say goodbye.”

“Huy would not have succeeded as we have for the last 12 years in making sure that Indigenous relatives are allowed to worship freely in state prisons, were it not for Chief,” said Galanda. “Despite being behind prison walls, he was instrumental in our advocacy. He wrote letters, he made phone calls, he organized powwows, he’s been an advocate for all Indigenous men and women in state iron houses – not just in Washington state, but throughout the country.”

In addition to organizing powwows, Rice has advocated for access to Indigenous religious traditions on prison grounds. That includes smudging, sweat lodge and pipe ceremonies. He leads a Native religious circle, known as a hoop. It’s one of 21 hoops in Washington’s state prisons. Hoop members work the prison medicine garden, tending plants from seed to harvest, braiding sweetgrass, and sifting flowers used to make the medicine used in ceremonies.

Under their regalia, incarcerated Native Americans wore identical khaki pants and gray shirts. The Sept. 8 celebration, organized by Herbert Rice Jr., was the first time the Washington State Department of Corrections allowed an outdoor powwow in a medium-security prison. Photo by Jarrette Werk / Underscore News

Participation in ceremony is transformative and restorative for Indigenous inmates, according to Jeremy Garretson, director of Unkitawa’s Indigenous reentry program. Unkitawa is a non-profit that provides numerous services to the Indigenous community.

“The sweat lodge and other ceremonies are traditions that were lost to a lot of people in our communities for a long time,” said Garretson, who is Northern Arapaho. “You have some families that for multiple generations have been displaced and haven’t had this form of tradition and culture in their daily lives for some time. Unfortunately, what filled the void in many of those lives were drugs, alcohol, street violence – different parts of the street culture rather than traditional culture.

“For some individuals, it took being incarcerated, being in a place where you’re set still and where you don’t have anything to do but think, and now you have an option to go to sweat lodge. It gives you the opportunity to go into a space where it’s just your own people and you feel normal, you feel safe, and for a moment you can let that guard down. And when you do let that guard down, that’s when the access to spirituality can come to you, that’s when that connection to culture can happen.

“When you go into those ceremonies, now you have the ability to leave that old way behind you. But now, when that leaves, there’s again a void and you have to fill that void with something. What I have seen and experienced time and time again is that ceremony – that medicine – fills that void, and can you move in society again in a positive manner.”

Rice described a similar experience.

“A lot of guys carry so much pain in their lives,” Rice said in an earlier interview. “I was one of them. In the sweat lodge, you feel the security you feel when you’re with family. You get a chance to grieve for whatever was lost in your life. You get a chance to grieve for things you’ve done in your life that hurt other people, for the things you’ve neglected in your life. All those things come to you through that meditation and that prayer. It’s a pivotal moment. The medicine in that lodge touches you and the healing process begins.”

As Unkitawa’s reentry program director, Garretson meets with Indigenous inmates to develop a plan for their life once they are released. Some meetings begin up to a year before the inmate’s release. If an inmate chooses Unkitawa’s help, he can walk out the prison gates and into a support network that includes clothing, employment, housing and accountability. (Garretson said he or another Unkitawa representative is there to pick the inmate up upon release.)

That accountability includes regular participation in ceremony, Garretson said.

“The day I was released, by that night I was at ceremony,” said Garretson. “I wasn’t visiting my buddies and getting involved in the things I used to do. My life was about regaining that balance now that I was out here. There was no looking back.”

That’s the kind of path Rice has set many inmates on, Garretson said. And it’s work that he and others believe Rice will continue to do if released.

“He’s been incarcerated for many years and he’s utilized a lot of those years to educate himself so he can better himself and better his people and the community as a whole,” Garretson said. “He doesn’t just advocate, he leads by example. That’s really important – he’s a leader.”

“I learned all life is connected”

During his first few years at Washington State Penitentiary, Rice acclimated to the prison and prison culture.

“I got sucked into that somewhat,” he said. “That went on for a couple of years, but it was a real conflict for me because that wasn’t who I was in my heart.”

Rice began going to the sweat lodge and praying, but he said the pivotal point for him was meeting Francis Culloyah, a Kalispel elder who at the time was religious coordinator for the Washington State Department of Corrections.

“The moment I got involved with the ceremonies, the more I started to understand how everything is connected, how all life is connected,” Rice said. “I learned about sacredness, about holding things sacred and that if you don’t hold things sacred inside you, you won’t have respect for anything or anyone.”

As he matured and grew, Rice began sharing his truth with younger inmates: that the prison way was “B.S.” and a waste of their lives.

“I affected a lot of guys in a positive way that went home,” Rice said. “Their moms and grandmothers would thank me and I felt honored to have been able to contribute back to my community in that fashion.”

Joey Brooks, Lakota, has participated in four powwows during his incarceration at Washington State Penitentiary. He credits a reconnection to his culture for guiding him in the right direction. "No matter how far you get off the path, the medicine will bring you back,” Brooks said, on September 8, 2022. Photo by Jarrette Werk / Underscore News

Joey Brooks, Lakota and an inmate at the Washington State Penitentiary in Walla Walla, told Underscore News in September that Rice “has been a pretty big role model” for him and other inmates.

“If he gets out, it’s going to be left to one of us” to continue the work inside, Brooks told Underscore. “And I hope he does get out. Because he’s going to be a big help to us out there.”


Lead image: Herbert "Chief" Rice Jr. addresses family members of Mike and Dorothy Nickoloff during his resentencing hearing in Yakima County Superior Court Tuesday, March 21, 2023. Originally sentenced to life-without-parole, Rice and his accomplice, Russell Duane McNeil, were sentenced to 40 years in prison. (Donald W. Meyers/Yakima Herald-Republic)

About the author

Richard Arlin Walker

Richard Arlin Walker, Mexican/Yaqui, is an ICT correspondent reporting from Western Washington.