State v. Natale: A Brief from New Jersey

I have been in touch with one of the lawyers in State v. Natale, a case pending in the New Jersey Superior Court Appellate Division. He called my attention to one of the briefs filed in that case, and I have now read most of it. (New Jersey apparently has a 65-page limit for briefs.) From what I have read, many of the central aspects of New Jersey's sentencing scheme are Blakely-indistinguishable from Indiana's.

The brief has been posted on Sentencing Law & Policy for some time here, and I regret very much that I did not read it sooner. I commend it as a good commentary on many of the arguments made today in Heath and Smiley. The brief presents a very good argument, for example, explaining why the State's argument that Blakely does not apply to Indiana sentencing cannot be correct.

The brief also focuses much more tightly than anything I have seen on the constitutional infirmities of specific sentencing statutes and the lack of authority of courts to act at all under those unconstitutional statutes. I think the briefs and arguments in Heath and Smiley were much more focused on the sixth amendment violations in Heath's and Smiley's sentences themselves.

I will say that one difference between New Jersey and Indiana is that in the Garden State, one may mount facial challenges to a statute's constitutionality for the first time on appeal. On the other hand, as Justice Sullivan, I think, pointed out today, Indiana has permitted attacks on sentences for the first time on appeal. So why not on the statutes that produce the sentences?

I have found the brief to be a real education. Blakely continues to surprise.

[Update: For those who like to cut and paste, I have kindly been provided with the WordPerfect verison of amicus brief in State v. Natale.]