Abstract
Equitable remedies have begun to play a critical role in addressing
some of the systemic issues in criminal cases. Invoked when other
solutions are inadequate to the fair and just resolution of the case,
equitable remedies, such as injunctions and specific performance,
operate as an unappreciated and underutilized safety valve that
protects against the procedural strictures and dehumanization that are
hallmarks of our criminal legal system. Less familiar equitable-like
legal remedies, such as writs of mandamus, writs of coram nobis, and
writs of audita querela, likewise serve to alleviate fundamental errors
in the criminal process. Several barriers contribute to the limited use
and efficacy of these longstanding remedies. Despite the vast numbers
of people caught up in the criminal system, society's aversion to
recognizing errors in the system or to acknowledging the humanity of
those charged prohibits greater invocation of these remedies. When
taken in conjunction with the historically-based fear of judicial
arbitrariness and unchecked discretion associated with equity courts,
these barriers can seem insurmountable. This Article highlights the
pervasiveness of equitable remedies in the criminal system and
advocates for an expanded use of equitable and equitable-like legal
remedies in criminal cases. In an era with the odds so overwhelmingly
stacked against criminal defendants, equity provides a much-needed
check on our criminal system, allowing for the exercise of mercy and
justice, not just punitiveness and retribution.
Document Type
Article
Publication Date
2021
1-24-2023
Repository Citation
Lollar, Cortney, "Invoking Criminal Equity's Roots" (2021). Law Faculty Scholarly Articles. 734.
https://uknowledge.uky.edu/law_facpub/734
Notes/Citation Information
Cortney E. Lollar, Invoking Criminal Equity's Roots, 107 Va. L. Rev. 495 (2021).