Invoking Criminal Equity's Roots

66 Pages Posted: 13 May 2020

Date Written: April 8, 2020


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 is the first to acknowledge the pervasiveness of equitable remedies in the criminal system, and to advocate 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.

Keywords: Equity, Remedies, Criminal Procedure, Sentencing, Writs, Mercy

Suggested Citation

Lollar, Cortney, Invoking Criminal Equity's Roots (April 8, 2020). Virginia Law Review, Vol. 107, Forthcoming, Available at SSRN: or

Cortney Lollar (Contact Author)

University of Kentucky ( email )

Lexington, KY 40506
United States

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