June 22, 2017

Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

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Category: Criminal Law & Process, Poverty & Law, Public, U.S. Supreme Court
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A photo of the Supreme CourtThree decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. DunnHowever, when the Court issued its McWilliams decision earlier this week, the justices actually ruled in the defendant’s favor on quite narrow, case-specific grounds, leaving the big question about the acceptability of a neutral expert unanswered.

Whenever the Court gets around to answering the question — and, given the way that matters were resolved this week, McWilliams itself could well provide the vehicle on a return trip to the Court — the justices will confront a difficult issue that touches more generally on the role of experts in an adversarial system of justice, and even on the very nature of scientific knowledge.

Our ideal for science is objective knowledge. We hope that scientists will develop analytical methods that will invariably yield the same conclusion as to the same subject, regardless of who is doing the analysis.

If tests for mental illness are “scientific” in this sense, then there seems little unfairness in limiting the defendant to a neutral psychiatrist. The only way in which having an expert on the defense team might change the outcome would be if the defendant’s “hired gun” were dishonest or incompetent — and there surely cannot be a constitutional right to mislead the jury with bad science.

Thus, the claim that the defendant should have his own expert seems implicitly grounded in a belief — accurate, I should think — that psychiatric diagnosis does not always fit that ideal of wholly objective and indisputable conclusions. In the American legal tradition, of course, we look to adversarial process to determine the truth when there are two conflicting, but both still plausible, versions of reality available. Thus, if reasonable psychiatrists could differ over a defendant’s diagnosis, it seems natural to fall back on adversarial process and give each side an opportunity to make the best case possible for its version of reality, including with its own expert witness. We are accustomed to think that the truth will emerge from such an adversarial clash.

And, yet, there is something disquieting about this picture. When we ask a jury to choose between two competing stories about what a defendant did, we count on the jury to use its common sense and life experience to decide which version of reality is more plausible. But, when the question instead relates to what was going on in the defendant’s head, it is not so clear that common sense and life experience are up to the challenge. After all, the essence of the defendant’s claim is that his brain was not working in a way that is familiar to most lay people in their day-to-day lives. The very reason we bring experts to bear to try to deal with the issue makes lay jurors seem unqualified to pick between the two different versions of reality being presented.

There does seem a dilemma here. If we use only a single, nominally neutral expert, then the jury may be left with a sense in some cases that the science is more certain and one-sided than it really is. On the other hand, if we arm each side with its own expert, then we implicitly ask the jury to perform a task for which it is ill-equipped — adjudicating the scientific quality of competing expert opinions. There may be ways of alleviating the concerns — e.g., through use of a neutral panel of experts — but such approaches tend to raise cost and other practical difficulties.

Perhaps the conundrum helps to explain why the Court has not seemed anxious to resolve the big question that was posed by McWilliams.

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June 20, 2017

Race and Risk Assessment

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Category: Criminal Law & Process, Public, Race & Law
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Risk-assessment has become all the rage in American criminal justice. In jurisdictions across the country, criminal-justice officials are utilizing increasingly sophisticated risk-assessment tools, which can be used to predict a given offender’s likelihood to reoffend based on his criminal history and a number of other variables. These predictive evaluations can be brought to bear at several important decisional points in the criminal process: pretrial release, diversion into treatment, sentencing, and others.

Although risk assessment has been widely applauded for its potential to support increased efficiency in the use of scarce criminal-justice resources, a recurring criticism has been that leading risk-assessment tools have built-in racial biases. A particular concern has been the heavy reliance on criminal history; to the extent that criminal history reflects biased actions by police or others in the past, then predictions based on that history may tend to overestimate the relative risk posed by minority defendants. Thus, for instance, a black defendant and a white defendant whose actual risk levels are identical could potentially receive quite different risk scores, leading to quite different bail or sentencing decisions.

Such concerns find some support in the empirical research.

A new study, however, reaches more reassuring conclusions, at least with respect to one risk-assessment tool used in federal court.  Read more »

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June 15, 2017

Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads

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Category: Federal Law & Legal System, Feminism, Judges & Judicial Process, Legal Profession, Political Processes & Rhetoric, Public
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On Tuesday, the Senate Intelligence Committee questioned Attorney General Jeff Sessions about his contacts with Russian officials in Washington D.C. and his conversations with the President about the Russia investigation or about former F.B.I. Director James B. Comey.

The hearing has been called “at times fiery” and Sessions’ testimony “highly contentious.” Indeed, several Democratic senators engaged in some testy back-and-forth with Sessions, with Oregon Senator Ron Wyden saying that Sessions’ answers did not “pass the smell test” and New Mexico Senator Martin Heinrich declaring that Sessions “[is] obstructing.”

But the grilling of Sessions that has probably received the most attention is that of California Senator Kamala Harris, a junior senator and former California attorney general. Senator Harris was questioning Sessions about his many non-answer answers at the hearing. Sessions claimed he was not answering due to long-standing Justice Department policy. Senator Harris pushed Sessions on this policy.

The New York Times described Senator Harris’ questioning style as “a rapid-fire . . . pace more commonly seen in courtrooms—a style that at times has her interrupting witnesses.” During her questioning, she was interrupted by both Arizona Senator John McCain and by North Carolina Senator Richard M. Burr, the chairperson of the Senate Intelligence Committee. Both men suggested that Sessions be allowed to answer. This was the second time in two weeks that Senator Harris has been interrupted by Senators Burr and McCain. Last week, she was interrupted by them while questioning Deputy Attorney General Rod Rosenstein. (Following the Sessions testimony, Jason Miller, a panelist on CNN, referred to Senator Harris as “hysterical,” most certainly a gendered analysis. CNN political analyst Kirsten Powers called out Miller’s gendered statement and pointed out how Miller believed neither Senators Harris (a woman of color) nor Wyden (a man) were “trying to get to the bottom of answers,” yet Miller called only Senator Harris “hysterical.”)

Earlier this year, during a Senate debate about Sessions’ confirmation as Attorney General, Massachusetts Senator Elizabeth Warren was interrupted and then formally rebuked by Senator Majority Leader Mitch McConnell for reading a 1986 letter from Coretta Scott King about then-U.S. attorney Jeff Sessions, who had been nominated at that time for a federal judgeship. The letter had criticized Sessions for using “the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.” (The Senate rejected Sessions’ nomination for that federal judgeship.) Later, three male senators read the same letter on the Senate floor, and none were rebuked.

Maybe Harris’ and Warren’s treatment is all about rules of decorum in the Senate. Decorum may be part of it; more than that, though, it appears to be the ages-old pernicious pattern of men interrupting women. It happens to most women, much of the time, in both personal and professional settings.

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June 13, 2017

Dark Clouds on the Horizon for Graham v. Florida?

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Category: Criminal Law & Process, Public, U.S. Supreme Court
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A photo of the Supreme CourtIn 2010, the Supreme Court ruled in Graham v. Florida that a juvenile sentenced to life in prison for a nonhomicide crime must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision yesterday in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would eventually have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of geriatric release under Virginia law, which effectively permits the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

Yet, the Supreme Court reversed yesterday in a brief per curiam opinion.   Read more »

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June 8, 2017

Richard Florida Calls for Spreading the Success of “Urban Revival”

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Category: Milwaukee, Public, Speakers at Marquette
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Richard Florida describes himself as a thinker. “I sit in a little room with a computer and think thoughts and write them down,” he told a capacity audience or more than 200 in the Lubar Center of Marquette Law School during an “On the Issues with Mike Gousha” program on Thursday.

But his thoughts have made him an influential and widely-followed analyst of the trends shaping urban life in North America. His 2002 book, The Rise of the Creative Class, predicted that there would be a surge of vitality in cities where creative people – tech innovators, artists, entrepreneurs, and so on  – clustered.

“I really under-predicted,” Florida told Gousha. In following years there was “an urban revival on steroids.”

The trends he foresaw have shown up in Milwaukee. “It’s amazing what’s happened here,” Florida said, mentioning some of the things he had done and seen since arriving the previous day. “Milwaukee has done a fabulous job of reinventing itself.”

But the boom in urban living and economic vitality has brought with it downsides, Florida said. All you need to know is the title to his new book to catch his concerns: The New Urban Crisis: How Our Cities Are Increasing Inequality, Deepening Segregation, and Failing the Middle Class – and What We Can Do About It. Read more »

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Mitigating Climate Migrants Crisis With Hybrid Status

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Previously, I wrote about how the U.S. has no legal instrument that provides legal status for climate migrants.  The lack of such status incentivizes climate migrants to enter or remain in the U.S. illegally. Thus, to mitigate the effects of the migrant crisis, I propose that the U.S. adopt a new legal status tailored to climate migrants. Specifically, I propose a unique hybrid status for climate migrants, which combines aspects of refugee status and temporary protected status (“TPS”).[i] At a minimum, such status must have three key elements for legislation to appropriately address climate migrants: (1) a narrow definition of “climate migrant”, (2) mandatory application of legal status, and (3) conferral of the same rights refugees’ receive.[ii] Read more »

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June 4, 2017

Facing Extinction: Climate Migrant Crisis

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Category: Environmental Law, Human Rights, Immigration Law, International Law & Diplomacy, Public, Water Law
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Map showing the continents of the the planet Earth with coastal areas marked in red highlighting the effect of a 6 meter rise in sea level. In recent days, President Trump has declared that he would have the United States withdraw from the Paris climate accord.  Business leaders like Elon Musk of Tesla have said that this decision would ultimately harm the economy by yielding the jobs of the future in clean energy to foreign competitors. I argue that withdrawing from the Paris climate accord also serves to exacerbate the climate migrant crisis that will inevitably hit American shores.

The global environment has long impacted migration patterns. For instance, humans have historically left places when deteriorating conditions threatened their survival. However, accelerated effects from climate change are expected to bring about significant and unprecedented changes to global migration patterns. Climate change is rapidly destabilizing global environments,(1) resulting in increasingly more common rising oceans, longer and more frequent droughts, and higher temperatures.(2)  Consequently, changes to global environments will inevitably dislocate people from their homes and nations. In fact, many communities have already started to suffer from the disastrous consequences of climate change. For example, in Gabura, Bangladesh, many of the three thousand people who live in this coastal region have been forced to move their homes onto skinny, man-made embankments to flee the rising ocean.(3)  Yet because of increasingly cramped conditions and dwindling resources, villagers are unable to work, farm, and live as they traditionally have.(4)  Unfortunately, there is no relief in sight, as scientists predict rising waters will completely submerge Gabura and at least seven percent of all Bangladesh before the end of the century.(5)  Parallel stories of growing displacement caused by rising sea-levels,(6) more frequent droughts,(7) and retreating sea ice(8) are found in ever increasing numbers all around the globe.

As nations debate the causes and treatments for climate change, people everywhere are struggling to adapt to new environmental realities. Regrettably, for many adaptation will mean leaving their countries to survive. Such people who are induced to leave their home country because of the climate change are referred to as “climate migrants”.(9)  Presently there is little empirical research to provide anything more than a rough prediction of population displacement that will occur because of climate change.(10)  In fact there is a wide variety of predictions; however this does not undermine the urgency to address the climate migrant crisis. For example, Christian Aid, a British organization that actively provides refugee assistance, predicts that the global number of displaced people may rise to more than one billion by the year 2050, in large part due to climate change.(11)  In comparison, ecologist Norman Myers reports that up to 200 million people may be become climate migrants by the end of this century.(12)  Despite the lack of empirical research, what is certain is that global warming will lead to massive population displacements and climate migration at numbers never before witnessed.(13)  Such displacement will almost certainly lead to extinction of peoples and cultures. Read more »

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May 30, 2017

Welcome June Bloggers!

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We would like to welcome our guest bloggers for the month of June to the Faculty Blog.

Our Alumni Blogger for June is Kristin D. Hardy, Compliance Counsel at Rockwell Automation, Inc., the world’s largest company dedicated to industrial automation, headquartered in Milwaukee. As Compliance Counsel, Kristen focuses on the areas of regulatory compliance, third party anti-corruption, and bribery. Additionally, she handles internal ethics investigations across the global enterprise, while assisting with communications, messaging, and training related to the compliance & ethics program.

Kristen graduated from Marquette in 2014, where she served as the President of the Black Law Students Association (BLSA). She was also an editorial staff member of the Marquette Intellectual Property Law Review, and a MWBLSA Thurgood Marshall mock trial captain and participant.  Kristen currently serves on the Board of Directors for the Wisconsin Association of African-American Lawyers (WAAL), an organization dedicated to ensuring diversity in Wisconsin’s legal community through community service and professional partnerships. She was recently elected to the Board of Directors for the Young Lawyers Division (YLD) of the State Bar of Wisconsin. Kristen has presented at national legal conferences, including the Association of Corporate Counsel (ACC) Annual Meeting (2016) and Chief Litigation Officer Summit (2016). More recently, Kristen was a recipient of the 2017 National Summit of Black Women Lawyers Emerging Leader Award, and a member of the inaugural class of G. Lane Ware Leadership Academy through the State Bar of Wisconsin.

Our Student Blogger for the month of June is Hannah Dockendorff.  Prior to joining Marquette University Law School, Hannah graduated summa cum laude from Cardinal Stritch University with a bachelor of arts in history. During that time, she promoted education in history and science while working for the Distance Learning Program in the Milwaukee Public Museum. Hannah also has a lengthy history of serving others, for example working with Catholic Charities of the Archdiocese of Washington D.C. to integrate recently released convicts into the local community.  While at Marquette, Hannah focused her studies upon immigration and other related legal matters. This resulted in Hannah providing legal assistance for the Milwaukee Justice Center, the Marquette Volunteer Legal Clinic, Catholic Charities Immigration Services, and the Wisconsin Department of Workforce Development Equal Rights Division. Hannah also was recently awarded a CALI for International Intellectual Property. Hannah Dockendorff is a newly minted May 2017 graduate of the Law School with Pro Bono Honors for over 120 honors of service.

We look forward to reading your posts!

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Violence Prevention Initiatives: The Difficulty of Building on Early Success

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public
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Project Safe Neighborhoods has been among the highest-profile and best-funded national violence prevention initiatives of the past two decades, involving allocations of about $1 billion to U.S. Attorney’s Offices across the country. Evaluations to date have generally been positive, but a new study of the PSN experience in Chicago highlights the challenges of building on early success.

The researchers, Ben Grunwald and Andrew Papachristos, attempted a rigorous, beat-level analysis of the impact of PSN on troubled neighborhoods in the Windy City, which had a distinctive approach to PSN that seemed quite effective at first. Read more »

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Quieting The Noise: And How You’ll Know When Its Time To Leave Your First Job

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During the Marquette Review banquet in March, Steven Biskupic, former U.S. Attorney for the Eastern District of Wisconsin and the featured speaker, explained why we law students should leave our first job. He gave many reasons for why one should leave, such as general dissatisfaction or being asked to sacrifice our own moral standards. But the harder part, and the question addressed here, is how does one know when its time to leave?

This process begins with sensitivity. Not the type of sensitivity we associate with hurt feelings or emotionalism, but the innate ability to feel what is around and inside us. For instance, anyone who spends any time around a law school during finals can feel a certain something in the air. There is an intensity, a buzz, a tension, and it is palpable. It is so palpable, in fact, that everyone feels it. One can almost taste it. It is not uncommon to hear students say things like, “I have to get out of the building, it is too intense in there.” But if you look around, it is not the sort of intensity that is produced by some form of frantic, kinetic movement, like the kind you might find at a tax preparer’s office in early April. Rather, it is the sort of potential energy you find stored in the minds and bodies of students who, with head in hands, exude anxiety, fear, and stress. Sometimes it is visible in the faces of those around us, but even if it can’t be seen, it can be felt. Read more »

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R.I.P. Gregg Allman (1947-2017)

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Category: Popular Culture & Law, Public, Uncategorized
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Singer Geg Allman plays the keyboard.It is my impression that a good rock ‘n roll band can help a lot in law school.  If listened to at the “appropriate” volume, the band can reduce the stress of the first year and relieve the tedium of the second and third years.

My band during law school was the Allman Brothers Band.  It released an extraordinary string of vinyl albums in the early 1970s, with “Eat a Peach” (1972) being my personal favorite.  My friends and I didn’t think of the Allman Brothers as progenitors of southern rock but rather as countercultural southern musicians able to blend the blues, jazz, and even a little country.  The Band compared in our minds to Cream, Jimi Hendrix, and, of course, the Grateful Dead.  And who knew that an aspiring Georgia politician named Jimmy Carter was also a fan of the Band’s incredible improvisational jams?

The Allman Brothers song that I played the most was “Whipping Post.”  Gregg Album wrote the song and also sang the lead vocal.  Its studio version appears on the Band’s debut album, but even better is the live version on “At the Fillmore East” (1971).  I realized from the start that the song was about lost love, but I chose to think of it in relation to my existential condition:  “Tied to the whipping post.  Good Lord, I think I’m dying . . . .”

During the 1970s, the Allman Brothers Band lost two of its original members in separate motorcycle accidents.  (The Band members loved Harleys.)  Afterwards, Gregg Allman struggled to hold the Band together, but alcohol and drugs were mean nemeses.  He also had six marriages, including an ill-fated and much-ridiculed union with Cher.  But still, he continued to make music and to tour.  Elise Papke and I caught his tremendous performance at the Northern Lights Theater in the Potowatomi Casino from second-row seats in 2015, and yes, “Whipping Post” was on his play list.

It was with great sadness that I read of Gregg Allman’s death due to liver cancer on May 27, 2017.  R.I.P. old friend, and thanks for your help along the way.

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May 26, 2017

Wisconsin Grows, but Most Municipalities Shrink

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Category: Marquette Law School Poll, Milwaukee
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On May 25, 2017, the Census Bureau released its 2016 annual population estimates for subcounty geographic units.[1] This granular level of detail allows us to look more closely at where population change has occurred across the state.

As a whole, Wisconsin gained an estimated 91,419 people between July 2010 and July 2016—including 10,817 in the year ending July 2016. But these headline numbers obscure major variation across the state. Of the more than 1,850 cities, towns, and villages making up Wisconsin, 833 grew since 2010 and 986 of them shrank. Smaller places tended to get smaller, while bigger places got bigger. In 2010, 70 percent of the state lived in municipalities which would grow in the next six years, compared to just 30 percent in municipalities that would shrink. Much of this loss was concentrated in the northern region of the state, with the notable exception of several communities in Douglas County near Duluth, MN.

The map above shows the percent change in population for each Wisconsin municipality from 2010 to 2016.[2] The Green Bay/Appleton and greater Madison regions saw some of the highest growth, with additional sustained growth occurring in the Western part of the state including La Crosse, Eau Claire, and the Minneapolis/St. Paul suburbs. Nearly all portions of Marathon County surrounding Wausau have also experienced growth since 2010, although the City of Wausau itself declined marginally. This stands in stark contrast to nearby Rusk County, which lost 4 percent of its total population over the same time period. The only county to fare worse was neighboring Price County where the population declined by 4.5 percent. Dane County fared best with 9 percent growth, followed by tiny Menomonee (7 percent) and Green Bay area Brown County (5 percent).

Applying the same scale to just the past year’s change reveals similar, though necessarily less severe, trends. From 2015 to 2016 the City of Milwaukee lost an estimated 4,300 people, or about 0.7 percent of its population. Combined with a minor decline the year before, this essentially wiped out the city’s slight growth from 2010 to 2014.

Despite stagnant population size in places like Milwaukee and Wausau, Wisconsin’s growth is driven by its most populous communities. Municipalities with populations of at least 10,000 grew an average of 1.5 percent from 2010 to 2016. Municipalities with less than 1,000 residents shrank an average of 0.5 percent.

 

[1] Estimates are for July 1 of each year.

[2] I use the Census Bureau’s July population estimate base for 2010, not the decennial census. The technical unit of measurement in the map is Minor Civil Division (MCD), which corresponds with Wisconsin’s municipalities except in situations where municipalities cross county lines. In those rare cases, each county’s portion of the municipality is measured and mapped uniquely. Statistics in the report, however, reflect the total figures for each municipality.

 

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