Although six of the requests were denied by the trial judge, one is still pending, and the judge could at any time order any of them released as they await the outcome of their appeals, expected to be filed this summer. Defense attorneys may also appeal denials of the release requests to the 6th U.S. Circuit Court of Appeals in Cincinnati.
The Amish group's leader, Samuel Mullet Sr., was sentenced to 15 years in prison, while the rest of the group got sentences ranging from one to seven years.
The Amish have been sent to different prisons across the country, placing an overly harsh burden on their families who — because of their religion — cannot travel by plane and have to hire drivers for car travel, the group's attorneys argue.
For instance, in order for Mullet's wife to visit him and three sons convicted in the case, she'd have to travel to Oklahoma, Louisiana and two different prisons 160 miles apart in Minnesota.
The Amish "are being treated much more harshly than the typical federal prisoner, including those with much worse criminal histories and offense conduct," Mullet's attorney, Edward Bryan, wrote in a March 29 filing. "The manner in which their sentences are being carried out by the Bureau of Prisons is cruel and unusual."
In their response filed on Friday, prosecutors pointed out that Mullet has unsuccessfully argued to be released five times throughout the case, and cited comments from federal Judge Dan Polster that Mullet showed no remorse for the attacks and "enjoyed receiving prompt reports about the violent assaults, and even received a bag of hair as proof that one such assault was successful."
The prosecutors also said that as recently as Feb. 8, Polster noted "Mullet's dangerous hold" on his community and that Mullet had shown "a blatant disregard for the law."
They rejected that the Amish's placement in different prisons is cruel and unusual, and said moving him would be a waste of taxpayer money.
The prosecution's filing does not address other arguments being put forth by the defense that are far broader, largely uncharted territory in the courts and could eventually land in the U.S. Supreme Court, according to attorneys involved in the case and constitutional law professors contacted by The Associated Press.
Defense attorneys for the Amish are attacking the group's prosecution under the federal hate crime statute, passed in 2009. The statute stipulates that to constitute a federal violation, the crime has to involve crossing state lines or using "an instrumentality of interstate or foreign commerce."
In this case, government prosecutors successfully argued that the scissors and hair clippers were an instrumentality of interstate commerce.
That argument is an abuse of federal power and is unconstitutional, the defense attorneys argue.
Bryan pointed to last year's landmark decision by the U.S. Supreme Court over President Barack Obama's federal health care law. The court found that the individual insurance mandate at the heart of the law was not enforceable under Congress' power over interstate commerce but rather as a tax.
Bryan said that case, decided after the Amish were indicted, shows a willingness by the nation's highest court to narrow Congress' authority over interstate commerce, and could guide the 6th Circuit in its consideration of the Amish group's appeal.
Bryan and the other defense attorneys in the case also argue that the assaults didn't amount to a hate crime under the federal statute, arguing that the law wasn't meant to prosecute a given religious group's dispute among its own members.
Two constitutional law professors agree that the new filings contain interesting arguments that could eventually make it to the Supreme Court.
Vikram Amar, a constitutional law professor at the University of California-Davis, said that largely depends on how prosecutors argue that taking scissors across state lines to commit a crime amounts to a violation of the federal hate crime statute.
For instance, if the scissors were bought 20 years ago, "I could see a lot of appellate judges and Supreme Court judges say, 'That's too loose a test and gives Congress too much power.'"
Noah Feldman, a professor of international law at Harvard Law School, said the defense's argument is plausible, although he "wouldn't put the odds in their favor."
The argument that Feldman finds most interesting is one that the defense isn't even making: that the prosecution of the Amish for a hate crime is an overly broad interpretation of the federal statute.
"If you accept the interpretation that this is a hate crime, then any dispute within a religious group could be called a hate crime," Feldman said. "If I think my wife should obey me and my religion teaches me so and I take a swing at her, then I've committed a hate crime," rather than domestic violence.
Before trial, the Amish all rejected plea agreements that offered leniency, with some young mothers turning down a chance to avoid prison altogether.
Prosecutors argued that the group cut the beards and hair of other members because hair carries spiritual significance, hence the hate crime. The Amish argued that they're bound by rules guided by their religion and the government should never have gotten involved in what amounted to a family or church dispute.