Reviving Criminal Equity
Alabama Law Review
Recent scholarship has begun to take note of a resurgence of equity in civil cases. Due to a long-accepted premise that equity does not apply in criminal cases, no one has examined whether this quiet revival is occurring in criminal jurisprudence as well. After undertaking such an investigation, this Article uncovers the remarkable discovery that equitable remedies, including injunctions and specific performance, are experiencing a resurgence in both federal and state criminal jurisprudence. Courts have granted equitable relief in a range of scenarios, providing reprieve from unconstitutional bail and probation practices and allowing for an appropriate remedy to ineffective assistance of counsel during the plea-bargaining process. In this regard, equity operates as moral philosophers and early legal scholars envisioned it might: as a corrective to law. Moral philosophers contemplated equity as a complement to the rule of law and legal justice. Equity was to step in when a strict application of the law rendered an unjust result. After the supposed merger of law and equity in the Federal Rules of Civil Procedure, scholars and jurists believed equity had been subsumed under legal processes and structures. This assumption of fusion remained the dominant narrative until recently, when scholars began to note equity's resurgence in civil cases. This Article contributes to the literature challenging this presumption of equity's demise. Shifting the lens toward criminal cases, this Article illuminates that equitable remedies are experiencing a similar resurgence in the criminal sphere. A review of the case law confirms that parties in criminal cases are seeking equitable relief with increasing regularity, and courts are often granting such relief. This Article sets the stage for a more robust conversation about what the balance between equity and law is--and what it should be--in the context of our deeply troubled criminal legal system.
Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019).
Institutional Repository Citation
Cortney E. Lollar,
Reviving Criminal Equity,
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