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Excerpted From: Cortney E. Lollar, Invoking Criminal Equity's Roots, 107 Virginia Law Review 495 (May, 2021) (467 Footnotes) (Full Document)


CortneyLollarThe one-sided retributive impulses that govern state and federal criminal legal systems have significantly expanded the substantive criminal law while curtailing the procedural mechanisms aimed at protecting the rights of the accused. Few safety valves remain in place to keep these retributive impulses in check. Equitable remedies remain one such safety valve. Equitable remedies allow a person accused or convicted of a crime to obtain relief from the restrictive criminal procedures states and Congress have implemented over the past half century. Here are a few examples:

Orville Hutton legally came to the United States as a child from his native Jamaica. He became a lawful permanent resident and remained in the US. At the age of forty-eight, he was accused of assaulting his live-in girlfriend Hutton entered an Alford plea--a plea of guilty without an admission of guilt was sentenced to a term of imprisonment of one to five years. Ten days before he was to be released, the Department of Homeland Security notified him that he was subject to a federal detainer, as the government had begun deportation proceedings against him Hutton's trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal After he was transferred into DHS custody, Hutton filed a pro se writ of coram nobis, a little heard of equitable remedy still available in federal courts and many states. Hutton alleged a violation of his Sixth Amendment right to counsel based on his lawyer's failure to inform him of the likely immigration consequences of pleading guilty. The West Virginia Supreme Court granted the requested equitable relief, allowing him to withdraw his guilty plea and stand trial for the offenses with which he was initially charged.

An Arkansas jury convicted Eugene Pitts of capital murder after a masked man broke into the home of a doctor and his wife. The evidence at trial consisted of the wife's positive identification of Pitts, despite the mask covering much of the assailant's face; FBI testimony about hair found on the decedent, purportedly belonging to Pitts; and Pitts' inability to account for his whereabouts at the time of the murder. After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy. Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing. The remaining sample was later lost. Three years later, Pitts received a letter from the Department of Justice, informing him that the work of the FBI lab technician who did the hair analysis in his case “failed to meet professional standards,” resulting in three types of errors in the testimony at Pitts' trial. Pitts asked the Supreme Court of Arkansas to reinvest jurisdiction in the trial court to consider a remedy, including a writ of coram nobis and a writ of audita querela. The court granted the motion.

Maranda ODonnell joined other plaintiffs in a class action suit against Harris County, Texas, alleging that the county's bail system for indigent misdemeanor arrestees violated both Texas statutory and constitutional law and the Fourteenth Amendment to the US. Constitution. The Texas district court granted a preliminary injunction after eight days of hearings, finding that “County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so” In various ways, “the imposition of secured bail specifically target[ed] poor arrestees,” resulting in a pretrial system where “an arrestee's impoverishment increased the likelihood he or she would need to pay to be released” The district court found ODonnell had a likelihood of success on the merits of her claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees.

In each of these instances, courts alleviated a significant injustice in the criminal legal system that would have remained but for the availability of an equitable remedy.

These are not isolated cases. Although equitable remedies in criminal cases remain largely undiscussed in scholarly literature and public dialogue, they provide a critical safeguard in the criminal legal system worthy of deeper scholarly attention. Amidst a frustrating lack of progress toward reforming our criminal legal system, equitable remedies address some of the inadequacies and gaps in this lop-sided system. As I have noted previously, pretrial detainees have successfully challenged local bail systems, securing release from confinement through the equitable remedy of a preliminary injunction. Individuals convicted of a crime but unable to pay the fines, fees, and costs imposed at sentencing have avoided continued incarceration through injunctions as well. When prosecutors renege on promises made as part of a plea agreement, courts have relied on the equitable remedy of specific performance to insist on fulfillment of those promises. In short, equitable remedies play a valuable role in providing a modicum of balance to the criminal legal process.

This Article suggests that equity can and should play a larger role in criminal cases. Using equitable remedies such as injunctions and specific performance as a jumping-off point, this Article examines several equitable-like legal remedies whose pre-equity roots are grounded in similar notions of fairness and which, like equitable remedies, compel action, not just monetary compensation.

“Special and equitable” legal remedies in the form of writs of mandamus, writs of coram nobis, and writs of audita querela already play a role in addressing inequities in criminal cases, but as with injunctions and specific performance, they can play a broader role in balancing out the inequities in the current legal system. Writs of mandamus, for example, more often assist prosecutors in limiting a lower court's authority to challenge their actions than they aid a defendant in obtaining the personnel file of a police officer with a history of excessive force complaints. Writs of coram nobis historically have been available to a person claiming an error of “the most fundamental character” in that person's criminal conviction. But the availability of these writs in the federal system has been limited by prevailing precedent requiring the person to show an ongoing harm that is “more than incidental.” Courts have discounted claims of continuing financial penalties and an inability to obtain certain professional licenses as ongoing harms sufficient to bring a claim for a writ of coram nobis.

Embracing a reinvigorated use of equitable and equitable-like legal remedies would serve a crucial function in our criminal legal system. For example, writs of audita querela are an ideal equitable-like legal mechanism to request release from incarceration post-conviction due to the presence of COVID-19 in the prison or jail where one is serving a sentence. Writs of audita querela can issue when “it would be contrary to justice” to allow a criminal judgment “to be enforced, because of matters arising subsequent to the rendition thereof.” In states that have not limited the remedy's application, a request for release under audita querela due to the extraordinary and unpredicted consequences of COVID-19 could be an effective method of obtaining perhaps otherwise unattainable relief. These remedies can be an antidote to some of the criminal system's ills, responding to the narrowing of procedural protections for those charged with a crime, challenging the staggering expansion of criminal sentences, and addressing the metastatic collateral consequences that attach to a criminal conviction.

This broad remedial conception is grounded in equity's historical roots, yet limited in a manner that prevents unchecked, ad hoc judicial discretion. Focusing on judicially granted remedies, this Article proposes ways in which equitable remedies can begin to effectively challenge certain aspects of the criminal legal system in an effort to make the system fairer and more balanced.

This is the second of two articles addressing the use of equitable remedies in the criminal system. My first article, Reviving Criminal Equity, identified that courts are relying on equitable remedies, such as preliminary injunctions and specific performance, to counter inequities in the criminal legal system. Reviving Criminal Equity explored the use of the narrow category of remedies deemed equitable by early English courts in recent criminal cases. This Article takes off where Reviving Criminal Equity ends.

After beginning with a brief examination of the concept of equity and how it applies in the criminal legal system, Part I discusses the distinctions between equitable remedies and “special and equitable” legal remedies and describes how these “special and equitable” legal remedies are being effectively employed in a manner similar to equitable remedies in modern criminal cases. Part II recognizes the conceptual barriers to expanding the use of these equitable remedies, including a lack of familiarity with the remedies in a criminal context, and a societal and legal reluctance to give the benefit of the doubt to those accused of crimes. It then responds to these barriers by articulating a vision of a bounded equity. Pulling from historical equity principles that relied on an objective moral conscience quite different from this modern era's subjective ideas of conscience, Part II argues for the use of equitable remedies grounded in existing remedial principles rather than relying on a theory of shared morality. Finally, Part III provides specific examples of how a re-envisioned, expansive equity might look on the ground. Returning to the individual remedies outlined in Part I, Part III illustrates how courts could use equity to obtain a fairer and more just process and result in the face of a system full of procedural hurdles and punitive impulses.

[. . .]

In an era with the odds so overwhelmingly stacked against criminal defendants, attorneys should be encouraged to raise equitable remedies and equitable-like legal remedies to address some of the entrenched issues in criminal cases. The vision for a broader conception of criminal equity involves a jurisprudential shift when a judge finds herself without an adequate solution in traditional legal remedies. Our modern conception of equity references a bounded and reified system of responses to a problem legal rules are inadequate to remedy. But equity did not begin as this static of a concept. Initially, equity's scope was broader and more flexible. This Article advocates for a return to equity's roots, for a re-envisioning of equitable remedies in a manner consistent with equity's initial purpose and manifestation, yet adapted to fit our modern, secular legal structure and ensure compliance with the rule of law.

Limiting a judge's options to those imposed by narrow and restrictive laws means conceding to be confined by a system that is stacked against the person charged. Certainly, other avenues of seeking to change the parameters of the existing system are available and worth pursuing. Systemic change is necessary, but it can take time. In the meantime, equitable arguments already exist and courts, including the Supreme Court, have relied on equitable principles to grant defendants relief. Parties and courts should be taking full advantage of these existing mechanisms to try and seek a fair and just result.

James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law.

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