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Sentencing — new factors

Wisconsin Court of Appeals


Sentencing — new factors

New research that adolescent brains are not fully developed is not a new factor warranting sentence modification.

“In essence, McDermott’s lament echoes what has been attributed to Ben Franklin: ‘Reckless youth makes rueful age.’ The legislature has created a scheme of accountability for convicted criminals, and has given the circuit courts discretion either to deny the possibility of parole to those convicted of first-degree intentional homicide, or to set a parole-eligibility date. Indeed, as we have seen, McDermott and his accomplice killed their victim when McDermott was eighteen. Under the capital-punishment decision on which McDermott relies for his contention that new research on brain function justifies a modification of his parole-eligibility date, Roper v. Simmons, 543 U.S. 551, 569 (2005), states may sentence eighteen-year olds to death, see id., 543 U.S at 575. As with Ninham, McDermottt has not shown that the new research is a ‘new factor’ under the first aspect of Harbor’s two-part analysis. That McDermott may now rue what he did does not change things.”


Publication in the official reports is recommended.

2010AP2232-CR State v. McDermott

Dist. I, Milwaukee County, Martens, J., Fine, J.

Attorneys: For Appellant: Henak, Robert R., Milwaukee; Bizzaro, Amelia L., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Freimuth, James M., Madison

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