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.

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Notes/Citation Information

Cortney E. Lollar, Invoking Criminal Equity's Roots, 107 Va. L. Rev. 495 (2021).


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