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Blog Scan

Issues Added to Kiyemba v. Obama At SCOTUSblog, Lyle Denniston reports that Chief Justice Roberts has allowed the counsel for Kiyemba detainees' counsel to add a new case to the Supreme Court docket.  In what Denniston calls Kiyemba II, the Supreme Court will address a D.C. Circuit Court opinion which held that district courts may not "ba[r] the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipient country."  This issue was not included in the detainees' first petition.  Apparently, after the Court granted cert in Kiyemba I, counsel for the detainees filed an application to extend their petition for a writ of certiorari.  Chief Justice Roberts granted the petition today, and extended the time to file until November 10, 2009. 

Mandatory Minimums in Hate Crime Legislation:  Sentencing Law and Policy blogger, Doug Berman, links to the New York Times coverage of the new hate crime bill.  In the article, David Stout, reports that the Senate approved measure will "broaden[] the definition of federal hate crimes to include those committed because of a victim's gender or gender identity, or sexual orientation."  According to Berman, the bill also "includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences."  Berman's post also links to a statement from New York Senator Patrick Leahy.  In his statement, Leahy provides some background on the bill, and gives his reaction to its provision that attacks against service members will be subject to a mandatory minimum sentence. Leahy also states, "I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation." Exactly how Senator Leahy defines a "divisive" issue is unclear. Hate crime laws do have their opponents, as noted in the next item.

Constitutional Questions Surrounding Hate Crime Legislation:  At Wall Street Journal's Law Blog, Ashby Jones wonders, "Does the Hate Crime Bill Have 14th Amendment Problems?"  According to Jones, Nat Hentoff, a political columnist, has recently questioned whether the bill runs afoul of the Fourteenth Amendment. Hentoff's article, in Real Clear Politics, describes his concerns.  Hentoff believes there is a violation because it "set[s] up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes perceived to be based on gender identity, sexual orientation or disability, among other biases. Those who attack the elderly, police or those of the poor who are not among the 'protected classes' would not get lengthier 'hate' sentences than the law provides for the act itself."  (Technically, for a federal statute, the constitutional doctrine in question is  the "equal protection component" of the Fifth Amendment Due Process Clause.) Others, like College of Charleston mathematics professor Herb Silverman have articulated similar concerns. He wrote: "Suppose three murders occur: one for money, another out of jealousy, and a third because the victim is a black, gay Wiccan. If the first two murderers are sentenced to 20 years in prison and the third is sentenced to 30 years, would the families of the victims in the first two cases feel they had received equal justice under the law?"       


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