Another Reason to Read the Natale Brief

There is another very important reason to read the brief in State v. Natale. It identifies the severability problem confronting states with Blakely-affected sentencing statutes. I don't believe that I have discussed this in posts about Blakely. But the question is, what do the states do--where do they run--if the sentencing statutes are unconstitutional. Indiana, for example, does not have the Croxford III option of invalidating the sentencing statutes and then relying on the statutes of conviction. The option of applying sentencing statutes after (radical) constitutional surgery in Blakely cases and the usual statutory scheme in cases unaffected by Blakely would create a dual system that might well present constitutional problems of its own--equal protection and ex post facto problems, for example. So it is possible that the states are in a bigger pickle than Uncle Sam.

It really is a potential mess.