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2006 Wisconsin Law Review 645 (2006)
Copyright 2015 by The Board of Regents of the University of Wisconsin System; Reprinted by permission of the Wisconsin Law Review


The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The Wisconsin reforms in both areas allow - and in the area of eyewitness identification require - local agencies to adopt and periodically revisit the policies that govern their own practices in light of social scientific theory and in light of models developed in other jurisdictions.

Because of this institutional structure that delegates rule-making authority to local police agencies, Wisconsin's innocence reforms fit well within a new paradigm of regulatory jurisprudence called democratic experimentalism, which eschews top-down regulation in favor of allowing general norms to be articulated and informed from the bottom up through a combination of benchmarking best practices and encouraging local experimentation within a regime of public accountability based on measurable outcomes. This article explores the Wisconsin experience as a case study within this new regulatory framework. It concludes that although Wisconsin's innocence reforms are promising, they lack an adequate institutional structure to sustain continued reform. In particular, their reliance on enforcing the new regulatory structure through the exclusionary rule in individual criminal cases will be inadequate to meet the goals of continuous improvement. However, the prospect of invoking the elaborate accountability structures of experimentalism faces similar challenges. A careful analysis of the process of legislative reform in Wisconsin - and the national reform networks within which it occurred - demonstrates that incremental reform designed to gain genuine buy-in among diverse criminal justice stakeholders on a local level may ultimately be a more fruitful approach. Although more ambitious experimentalist accountability structures may be counterproductive in the context of regulating police investigations, the experimentalist focus on information-pooling and cross-jurisdictional learning may prove important in a more incremental and loosely-structured reform process