Invoking Criminal Equity’s Roots

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.

Introduction

The 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.1.State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).Show More He became a lawful permanent resident and remained in the U.S.2.Id.Show More At the age of forty-eight, he was accused of assaulting his live-in girlfriend.3.Id.Show More Hutton entered an Alford plea—a plea of guilty without an admission of guilt4.Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).Show More—and was sentenced to a term of imprisonment of one to five years.5.Id. at 624.Show More 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.6.Id.Show More Hutton’s trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal.7.Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).Show More 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.8.A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.Show More 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.9.Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.Show More 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.10 10.State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).Show More

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.11 11.Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).Show More After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy.12 12.Id. at 804⁠–05.Show More Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing.13 13.Id. at 805.Show More The remaining sample was later lost.14 14.Id.Show More 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.15 15.Id.Show More 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.16 16.Id. at 804.Show More The court granted the motion.17 17.Id. at 806.Show More

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 U.S. Constitution.18 18.ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).Show More The Texas district court granted a preliminary injunction after eight days of hearings,19 19.ODonnell, 892 F.3d at 152.Show More 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.”20 20.Id. at 153.Show More 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.”21 21.ODonnell, 882 F.3d at 536.Show More 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.22 22.ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.Show More

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,23 23.But seeCortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g.,Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).Show More 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.24 24.SeeLollar, supranote 23, at 327–48.Show More 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.25 25.Id. at 342⁠–44.Show More 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”26 26.I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).Show More 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.27 27.See infra Section I.B.Show More 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.28 28.See infra notes 169–73 and accompanying text.Show More 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.”29 29.See infra notes 180–85 and accompanying text.Show More 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.30 30.Id.Show More

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.”31 31.Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).Show More 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,32 32.Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.Show More 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,33 33.SeeLollar, supranote 23.Show More 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.

 

  1. * James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law. Thank you to Joshua Barnette, Valena Beety, Christopher Bradley, Erin Collins, Joshua Douglas, Ion Meyn, Anna Roberts, Caprice Roberts, Paul Salamanca, Kate Weisburd, and Ramsi Woodcock for sharing their invaluable thoughts and ideas throughout the writing of this piece. I am also grateful to the editorial staff of the Virginia Law Review, particularly Alexander Heldman, Chloe Fife, and Paige Whitaker, for their careful and thoughtful editing of this piece, and to Arjun Ogale for ensuring the editorial process ran smoothly from start to finish.

  2. State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).

  3. Id.

  4. Id.

  5. Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).

  6. Id. at 624.

  7. Id.

  8. Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).

  9. A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.

  10. Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.

  11. State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).

  12. Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).

  13. Id. at 804⁠–05.

  14. Id. at 805.

  15. Id.

  16. Id.

  17. Id. at 804.

  18. Id. at 806.

  19. ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).

  20. ODonnell, 892 F.3d at 152.

  21. Id. at 153.

  22. ODonnell, 882 F.3d at 536.

  23. ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.

  24. But see Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).

    Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g., Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).

  25. See Lollar, supra note 23, at 327–48.

  26. Id. at 342⁠–44.

  27. I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).

  28. See infra Section I.B.

  29. See infra notes 169–73 and accompanying text.

  30. See infra notes 180–85 and accompanying text.

  31. Id.

  32. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  33. Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.

  34. See Lollar, supra note 23.

  35. See, e.g., Lollar, supra note 23, at 317–19.

  36. Id. at 313–14, 327–48.

  37. Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Affs. 83, 87 (1993).

  38. See Lollar, supra note 23, at 316⁠–17.

  39. Nussbaum, supra note 36, at 85. Nussbaum identifies the ability of equity to both be lenient and flexible by the term epieikeia. Id. at 85⁠–86.

  40. Id. at 96.

  41. Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England

    13, 24 (2010).

  42. Irit Samet, Equity: Conscience Goes to Market 11 (2018) (citing Carleton Kemp Allen, Law in the Making 389 (6th ed. 1958)).

  43. Id. (quoting Lift Capital Partners Pty. Ltd. v Merrill Lynch Int’l (2009) 253 ALR 482, 507 (Austl.)).

  44. Klinck, supra note 40, at 31; accord Mike Macnair, Equity and Conscience, 27 Oxford J. Legal Stud. 659, 661–62 (2007).

  45. Klinck, supra note 40, at 25. Dennis Klinck notes, however, that some “dissident[]” scholars disagree with this “probably predominant position.” Id. at 26.

  46. Id

    .

    at 3–4; Macnair, supra note 43, at 674. Although some were concerned about the subjectivity inherent in “conscience” as early as the sixteenth century, see Klinck, supra note 40, at 3–4, according to Klinck, “it is clear that at least pre-Reformation accounts of conscience included a significant objective dimension,” id. at 3, that “would ostensibly be easier to reconcile with its status as a juristic principle, a measure of law,” id. at 4.

  47. Klinck, supra note 40, at 31.

  48. Id

    .

    at 2, 5, 32–35 (discussing how conscience was initially grounded in a “divinely ordained and objective moral order,” resulting in a particular moral judgment where conscience provides the governing rule and the facts are applied to that rule); Macnair, supra note 43, at 661 (“Synderesis is the faculty of moral reasoning, and conscience is the application of this faculty to particular cases.”); Macnair, supra note 43, at 667 (“[T]here are some fairly clear indications that [in the 1450s] there was a fairly definite conception of what ‘conscience’ implied.”); Timothy A. O. Endicott, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity, 47 U. Toronto Fac. L. Rev. 549, 552, 553 (1989) (noting how in the twelfth century, Thomas à Becket “made the Chancery into an office which set the law of the Church as the standard for the king’s conscience,” such that ecclesiastical chancellors “would resort to a conscience informed by the principles of the Church”); Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429, 441–42 (2003); Irit Samet, What Conscience Can Do for Equity, 3 Juris. 13, 21 (2012) (discussing medieval perception that conscience has a universal presence with objective principles that inform it based on the divine law of reason).

  49. Macnair, supra note 43, at 661.

  50. Id. at 662.

  51. David W. Raack, A History of Injunctions in England Before 1700, 61 Ind. L.J. 539, 555–58, 563 (1986); Lollar, supra note 23, at 327–48.

  52. Raack, supra note 50, at 560 n.131; Edwin S. Mack, The Revival of Criminal Equity, 16 Harv. L. Rev. 389, 392 (1903).

  53. Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 390.

  54. Mack, supra note 51, at 390.

  55. Klinck, supra note 40, at 169 (quoting Earl of Northumberland v. Bowes (1621), in 2 Cases Concerning Equity and the Courts of Equity 1550–1660 489 (W.H. Bryson ed., 2000)).

  56. Cf. Macnair, supra note 43, at 663 (describing how a “defendant in Chancery could demur to the plaintiff’s bill because there was no equity in it”).

  57. See, e.g., Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 391–92; Note, Developments in the Law–Injunctions, 78 Harv. L. Rev. 994, 1013–14 (1965); John Norton Pomeroy, Jr., Equity, in 7 Modern American Law 61 (Eugene Allen Gilmore & William Charles Wermuth eds., 1914); F.W. Maitland, The Origin of Equity (II), in Equity: Also the Forms of Action at Common Law: Two Courses of Lectures 19–20 (A.H. Chaytor & W.J. Whittaker eds., 1910).

  58. Lollar, supra note 23, at 322 (quoting Mack, supra note 51, at 391).

  59. Id. (quoting 30A

     

    C.J.S. Equity

     

    § 66 (2018)).

  60. Id. (quoting Graham v. Phinizy, 51 S.E.2d 451, 457 (Ga. 1949)).

  61. See, e.g., id. at 320–21; In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”).

  62. Lollar, supra note 23, at 322–23.

  63. See, e.g., id. at 313–14, 327–48; Samet

    ,

    supra note 41, at 5; Caprice L. Roberts, Supreme Disgorgement, 68 Fla. L. Rev. 1413, 1415–20 (2016); Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 999–1000 (2015); Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 204 (2012).

  64. Lollar, supra note 23, at 327–48.

  65. Id.

  66. Samuel L. Bray, Equity and the Seventh Amendment 6, 10 & n.48 (Feb. 1, 2019) (unpublished manuscript), (available at https://papers.ssrn.com/sol3/papers.cfm?‌abstract_id=3237907 [https://perma.cc/5E2C-JNRN]).

  67. Raack, supra note 50, at 544.

  68. Id.

  69. Id. at 541–42.

  70. Id. at 544–45.

  71. John Norton Pomeroy, A Treatise on Equity Jurisprudence (Students’ Edition)

    § 175 (1907).

  72. Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 540–42, 546, 559 n.141 (2016).

  73. Id. at 535.

  74. Id. at 559.

  75. Id. at 551–53.

  76. Id. at 562–63.

  77. In re El Mujaddid, 563 F. App’x 874, 874 (3d Cir. 2014).

  78. Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 402 (1976) (quoting Will v. United States, 389 U.S. 90, 95 (1967)).

  79. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (quoting Kerr, 426 U.S. at 403).

  80. See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam).

  81. 18 U.S.C. § 3771(e)(2)(A).

  82. Id. § 3771(a).

  83. Id. § 3771(d)(3), (e)(2).

  84. Id. § 3771(d)(3).

  85. See, e.g., Lewis v. U.S. Att’y Gen., No. 10-1624, 2010 WL 4069151 (D.D.C. Oct. 15, 2010).

  86. See, e.g., In re Linlor, 713 F. App’x 228 (4th Cir. 2018).

  87. These are so common that a Westlaw search for “writ of mandamus” within the same paragraph as 18 U.S.C. § 3771, the Crime Victims Rights Act, returned 10,000 hits; a similar search but with 18 U.S.C. § 3771 within a sentence of “writ of mandamus” returned similar results.

  88. United States v. Binkholder (Binkholder II), 909 F.3d 215, 216 (8th Cir. 2018).

  89. United States v. Binkholder (Binkholder I), 832 F.3d 923, 928 (8th Cir. 2016).

  90. Id.

  91. Id.

  92. Id.

  93. Id. at 928–29. The Eighth Circuit later clarified, however, that being declared a crime victim under the CVRA “is not necessarily dispositive of who is a victim under the Sentencing Guidelines” and instructed the lower court to make separate inquiries based on the respective definitions before enhancing Binkholder’s sentence based on the amount of the M.U.’s losses. Id. at 929–30. On remand, the district court reached the conclusion that M.U. was a crime victim both under the CVRA and under the relevant sentencing guidelines and sentenced Binkholder accordingly. Binkholder II, 909 F.3d at 217.

  94. Kenna v. U.S. Dist. Ct. for C.D. Cal., 435 F.3d 1011, 1012–13 (9th Cir. 2006).

  95. Id. at 1013.

  96. Id.

  97. Id.

  98. Id.

  99. Id. at 1016, 1018.

  100. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159 (1988). That right does not extend to those who cannot afford to hire counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (quoting Wheat, 486 U.S. at 159) (“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. ‘[A] defendant may not insist on representation by an attorney he cannot afford.’”).

  101. United States v. Santos, 201 F.3d 953, 957 (7th Cir. 2000).

  102. Id.

  103. Id. at 957–58.

  104. Id. at 958.

  105. Id. at 957.

  106. Id. at 958.

  107. Id. at 957–58.

  108. Id. at 960–61.

  109. Id.

  110. Id. at 959.

  111. Bridgers v. Kent, No. WR-45,179-03, 2006 WL 8430864, at *1 (Tex. Crim. App. Nov. 13, 2006).

  112. Id.

  113. Id. See also Tex. Code Crim. Proc. Ann. art. 11.071 (West 2005) (requiring the court of criminal appeals to “adopt rules for the appointment of attorneys as counsel” in death penalty cases and the convicting court to appoint an attorney as counsel “only if the appointment is approved by the court of criminal appeals in any manner provided by those rules”).

  114. Bridgers, 2006 WL 8430864, at *1.

  115. Id. at *1 n.1.

  116. See, e.g., State ex rel. Garvey v. County Bd. Of Comm’rs of Sarpy Co., 573 N.W.2d 747 (Ne. 1998); Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016) (seeking writ of mandamus to require the county to fund the public defender office; in this case, however, the former chief public defender, along with several former defendants, sought the writ).

  117. See, e.g., Hurrell-Harring v. State, 930 N.E.2d 217, 219, 222 (N.Y. 2010); Kuren, 146 A.3d at 718; Church v. Missouri, 913 F.3d 736, 741–42 (8th Cir. 2019); Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1123–24 (W.D. Wash. 2013).

  118. Twenty-Fourth Jud. Dist. Indigent Def. Bd. v. Molaison, 522 So. 2d. 177, 177–78 (La. Ct. App. 1988).

  119. Id. at 178.

  120. Id. at 181.

  121. Id.

  122. Rachel Moran, Contesting Police Credibility, 93 Wash. L. Rev. 1339, 1340–42 (2018).

  123. See, e.g., State ex rel. Glover v. Lashutka, No. 96APD10-1433, 1996 WL 751548 (Ohio Ct. App. Dec. 31, 1996); In re Willard, No. 07-16-00274-CR, 2016 WL 4158024 (Tx. App. Aug. 3, 2016).

  124. Moran, supra note 121, at 1368.

  125. Id. at 1370–76.

  126. Id. at 1372.

  127. Id. at 1373.

  128. See, e.g., Tex. Gov’t Code Ann. § 552.103 (West 1999); State ex rel. Coleman v. City of Cincinnati, 566 N.E.2d 151, 152 (Ohio 1991) (per curiam) (discussing Ohio’s exemption of records containing information related to an anticipated or ongoing case from the state’s general public records rule).

  129. Moran, supra note 121, at 1373.

  130. Long v. Municipal Ct., 128 Cal. Rptr. 918, 918 (Ct. App. 1976).

  131. Id.

  132. Id. at 919.

  133. Id.

  134. Id. at 919–20.

  135. State ex rel. Caster v. City of Columbus, 89 N.E.3d 598, 599–601 (Ohio 2016).

  136. Id. at 600.

  137. Id.

  138. Id. at 599–600.

  139. Id. at 601.

  140. Id. at 600.

  141. Id. at 602.

  142. Id. at 609. The court continued to recognize exceptions, such as the protection of the identity of confidential informants or specific confidential investigatory techniques. Id.

  143. Flipping the script, in one instance, the police department and city of Austin, Texas, obtained a conditional writ of mandamus challenging a lower court’s denial of their motion to quash a capital defendant’s subpoena for police personnel records. In re Moore, 615 S.W.3d 162 (Tx. Crim. App. 2019).

  144. See, e.g., Giovanni B. v. Superior Ct., 60 Cal. Rptr. 3d 469, 476 (Ct. App. 2007) (denying writ because the trial court was judged not to have abused its discretion in rejecting an in camera review of police records); State ex rel. Donovan v. Portage Cnty. Sheriff’s Dept., No. 90-P-2166, 1991 WL 260193, at *1–2 (Ohio Ct. App. Dec. 6, 1991) (granting writ related to information that purportedly would endanger the safety of law enforcement officers, but denying writ as to confidential investigatory techniques); Whittle v. Munshower, 155 A.2d 670, 671 (Md. 1959) (dismissing appeal as premature but addressing merits of the writ of mandamus claim); cf. Moran, supra note 121, at 1368–74 (discussing range of state statutes governing disclosure of police records).

  145. State ex rel. Keller v. Cox, 707 N.E.2d 931, 934 (Ohio 1999) (per curiam).

  146. Cf. Moran, supra note 121, at 1374–77 (discussing how even potential constitutional implications of failing to disclose police personnel files do not necessarily render the records disclosable under state statutory law).

  147. U.S. Const. amend. V (“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”).

  148. United States v. Dean, 752 F.2d 535, 540 (11th Cir. 1985) (quoting United States v. Denson, 588 F.2d 1112, 1126 (5th Cir. 1979), aff’d in part and modified in part en banc, 603 F.2d 1143 (5th Cir. 1979)).

  149. 18 U.S.C. § 3731.

  150. United States v. Wilson, 420 U.S. 332, 337 (1975).

  151. See, e.g., United States v. Choi, 818 F. Supp. 2d 79, 84, 87 (D.D.C. 2011).

  152. In re United States, 397 F.3d 274, 278, 287 (5th Cir. 2005) (per curiam).

  153. District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008) (per curiam), amended on denial of reh’g, 964 A.2d 1281 (D.C. 2009) (per curiam).

  154. Choi, 818 F. Supp. 2d at 82.

  155. See generally United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006) (granting writ after trial judge ordered that defendants could depose the government’s expert witnesses prior to trial); United States v. Vinyard, 539 F.3d 589 (7th Cir. 2008) (granting writ after trial judge sua sponte ordered defendant’s release from incarceration and vacated his plea agreement and sentence); United States v. U.S. Dist. Ct. for E. Dist. Cal., 464 F.3d 1065 (9th Cir. 2006) (per curiam) (granting writ after trial judge granted defense motion for a bench trial without government’s consent); United States v. Amante, 418 F.3d 220 (2d Cir. 2005) (granting writ after judge sua sponte bifurcated trial on the elements of a single count charged).

  156. See, e.g., In re United States, 397 F.3d at 278; Choi, 818 F. Supp. 2d at 82.

  157. Choi, 818 F. Supp. 2d at 83–87.

  158. United States v. Farnsworth, 456 F.3d 394, 396 (3d Cir. 2006).

  159. In re People, 49 V.I. 297, 300 (2007).

  160. 28 U.S.C. § 2241; see also Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Executive Summary: Habeas Litigation in U.S. District Courts

     

    1 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf [https://perma.cc/D9HU-35DA].

  161. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C., including §§ 2254, 2255).

  162. See, e.g., Teague v. Lane, 489 U.S. 288 (1989).

  163. See, e.g., Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions, 61 Ariz. L. Rev.

     

    291, 293 (2019); Eve Brensike Primus, Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Am. Const. Soc’y Issue Brief (July 2018), https://acslaw.org/wp-content/uploads/2018/07/July-2018-Primus-Issue-Brief-Habeas-Corpus.pdf [https://perma.cc/TM4T-WXT5]; Leah M. Litman, Legal Innocence and Federal Habeas, 104 Va. L. Rev. 417 (2018).

  164. David Wolitz, The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 BYU L. Rev.

     

    1277, 1287 (2009) (explaining that coram nobis is the “companion writ to habeas corpus . . . in essence, habeas for those not in federal custody”).

  165. William G. Wheatley, Coram Nobis Practice in Criminal Cases, 18 Am. Jur. Trials 1, § 1 (1971; updated 2020) (footnote omitted).

  166. Wolitz, supra note 163, at 1283.

  167. United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007).

  168. Wolitz, supra note 163, at 1283.

  169. 7 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 28.9(a) at 378 (4th ed. 2015) (citation and internal quotation marks omitted); Wolitz, supra note 163, at 1287 (“[In United States v. Morgan, 346 U.S. 502 (1954)], the Court effectively created a companion writ to habeas corpus. Coram nobis became, in essence, habeas for those not in federal custody.”).

  170. Wolitz, supra note 163, at 1283–84; Kathleen M. Bure, Note, Coram Nobis and State v. Stinney: Why South Carolina Should Revitalize America’s Legal “Hail Mary,” 68 S.C. L. Rev. 917, 923 (2017).

  171. United States v. Denedo, 556 U.S. 904, 912–13 (2009); United States v. Morgan, 346 U.S. 502, 512 (1954) (indicating writ is available for “errors of the most fundamental character”) (citation and internal quotation marks omitted); LaFave et al., supra note 168, at 378; Wolitz, supra note 163, at 1286 (“[Morgan] transformed coram nobis from its traditional function as a means for curing factual errors, unknown to the trial court, to a new function of curing any error of ‘the most fundamental character,’ including legal error.”).

  172. See, e.g., United States v. Akinsade, 686 F.3d 248, 256 (4th Cir. 2012) (ineffective assistance of counsel is a “fundamental error necessitating coram nobis relief”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (granting relief after the Supreme Court found mail fraud statute did not cover acts for which defendants were convicted); Wolitz, supra note 163, at 1289–91 (discussing federal circuit courts’ application of Morgan and the type of claims these courts tend to consider as triggering coram nobis relief).

  173. See, e.g., State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015) (granting writ based on ineffective assistance of counsel); State v. Sinclair, 49 A.3d 152, 157–58 (Vt. 2012) (concluding coram nobis can be used to challenge defective criminal convictions); Magnus v. United States, 11 A.3d 237, 246 (D.C. 2011) (“[E]ven if the error claimed by Magnus was a legal one . . . he still may pursue coram nobis relief.”); Skok v. State, 760 A.2d 647, 660 (Md. 2000) (holding that the scope of coram nobis includes errors of a constitutional or fundamental nature on public policy grounds); Chambers v. State, 158 So. 153, 158–59 (Fla. 1934) (holding that coram nobis can be used where there is evidence of coerced confessions); Bure, supra note 169, at 929 (noting court granted coram nobis relief based on coerced confession, ineffective assistance of counsel, failure to select an impartial jury, and execution of a minor).

  174. 346 U.S. at 512 (citation and internal quotation marks omitted).

  175. Wolitz, supra note 163, at 1284.

  176. Id.

  177. Id. at 1289; see also United States v. Doe, 867 F.2d 986, 988, 990 (7th Cir. 1989) (denying petition for writ because defendant could not show erroneous jury instructions would have justified habeas relief); Pitts v. United States, 763 F.2d 197, 199 n.1 (6th Cir. 1985) (per curiam) (noting the standards for granting relief under a habeas statute and through a writ of coram nobis are “substantially the same”); United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (interpreting defendant’s appeal from denial of coram nobis relief to be a petition under a habeas statute since he remained in custody and the two remedies were “substantially equivalent”).

  178. Wolitz, supra note 163, at 1290.

  179. See, e.g., Sibron v. New York, 392 U.S. 40, 55, 57 (1968).

  180. See, e.g., Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987).

  181. United States v. Keane, 852 F.2d 199 (7th Cir. 1988); United States v. Bush, 888 F.2d 1145 (7th Cir. 1989); United States v. Craig, 907 F.2d 653 (7th Cir. 1990).

  182. Wolitz, supra note 163, at 1292–99.

  183. Keane, 852 F.2d at 203 (“[Petitioner] must demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences).”).

  184. Craig, 907 F.2d at 658.

  185. Keane, 852 F.2d at 203; Bush, 888 F.2d at 1148–50.

  186. See United States v. Castano, 906 F.3d 458, 463 (6th Cir. 2018); United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993); Nicks v. United States 955 F.2d 161, 167 (2d Cir. 1992); United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992); United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989); see also Stewart v. United States, 446 F.2d 42, 43–44 (8th Cir. 1971) (per curiam) (denying coram nobis relief for defendant who did not demonstrate “present adverse consequences”).

  187. Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. New York, 392 U.S. 40, 55–57 (1968)).

  188. Id. at 606.

  189. Id.

  190. Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984); Hirabayashi, 828 F.2d at 592.

  191. Margaret Chon, Remembering and Repairing: The Error Before Us, In Our Presence, 8 Seattle J. for Soc. Just. 643, 646 (2010).

  192. Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943). Cf. Ex parte Endo, 323 U.S. 283 (1944) (declining to address the constitutional arguments, the Court ultimately ruled in favor of Endo’s challenge on statutory grounds).

  193. Hirabayashi, 320 U.S. at 100–01; Korematsu, 323 U.S. at 219–20.

  194. Korematsu, 584 F. Supp. at 1409–10; Hirabayashi, 828 F.2d at 593.

  195. Korematsu, 584 F. Supp. at 1410. See also Hirabayashi v. United States, 627 F. Supp. 1445, 1447 (W.D. Wash. 1986) (detailing the evidence in Hirabayashi’s case), aff’d in part, rev’d in part by Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). The newly discovered evidence was a suppressed draft of a wartime report that specified the real rationale behind the curfew and exclusion orders aimed at Japanese Americans during the war: racial prejudice, not military exigency. Hirabayashi, 828 F.2d at 598; Wolitz, supra note 163, at 1300. In fact, contrary to the representations made to the Supreme Court during the war-era cases, there was no military basis for the exclusion order. Hirabayashi, 828 F.2d at 598; Korematsu, 584 F. Supp. at 1416–17.

  196. Korematsu, 584 F. Supp. at 1419.

  197. Hirabayashi, 828 F.2d at 608.

  198. United States v. Peter, 310 F.3d 709, 715–16 (11th Cir. 2002) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 12 (1998)) (“[I]t is an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (“[P]etitioners . . . would face the remainder of their lives branded as criminals . . . .”).

  199. Mandel, 862 F.2d at 1075 n.12 (discussing how “[c]onviction of a felony imposes a status upon a person” that makes him “vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities”).

  200. Hirabayashi, 828 F.2d at 606–07. The U.S. Court of Appeals for the Eleventh Circuit has never addressed this issue.

  201. Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va. J. Soc. Pol’y & L. 1, 7 & n.33 (2003); see also Sinclair v. Louisiana, 679 F.2d 513, 514–15 (5th Cir. 1982) (discussing the scope of the prohibition on using coram nobis to attack state criminal judgments); Brooker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) (same); Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962) (same).

  202. State v. Sinclair, 49 A.3d 152, 156 (Vt. 2012) (quotations and citation omitted); see also Skok v. State, 760 A.2d 647, 658–59 (Md. 2000) (explaining that while it was not binding on them, most state appellate courts that have considered Morgan have followed it).

  203. Sinclair, 49 A.3d at 156.

  204. Bure, supra note 169, at 927–29.

  205. Id. at 927.

  206. Id.

  207. Id.

  208. Id. at 928.

  209. Id.

  210. Id.

  211. Id. at 927–28.

  212. Id. at 928.

  213. Id.

  214. Id. at 927–28. Stinney’s siblings had standing to assert their brother’s rights under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991). See Bure, supra note 169, at 925 & n.58.

  215. Bure, supra note 169, at 929.

  216. Id.

  217. See, e.g., Magnus v. United States, 11 A.3d 237, 246–47 (D.C. 2011); State v. Ledezma, No. IK83-09-0062-R1, 1989 WL 64151, at *2 (Del. Super. Ct. May 3, 1989).

  218. J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley, and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 561 & n.1 (2011).

  219. An Alford plea allows a defendant to enter a guilty plea without admitting guilt. See North Carolina v. Alford, 400 U.S. 25 (1970).

  220. State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). Specifically, Mr. Hutton’s trial counsel failed to inform him of the deportation consequences of his criminal conviction. Id.

  221. Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 645, 647 (1992).

  222. Caleb J. Fountain, Note, Audita Querela and the Limits of Federal Nonretroactivity, 70 N.Y.U. Ann. Surv. Am. L. 203, 211–14 (2014).

  223. Id. at 207.

  224. Robbins, supra note 220, at 650.

  225. Id. at 650–51, 653.

  226. Id. at 653.

  227. Id. at 656.

  228. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *6 (D. Utah Apr. 18, 2006); United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988); United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988); United States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999); cf. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004) (granting a petition for writ of audita querela for a legal immigrant INS sought to deport to Nigeria, though the opinion was later vacated), reh’g en banc granted, opinion vacated, No. 01-3928, 2004 U.S. App. LEXIS 15581 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004).

  229. Villafranco, 2006 WL 1049114, at *7.

  230. Id. (quoting United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir. 1994)).

  231. Doe v. I.N.S., 120 F.3d 200, 204 (9th Cir. 1997).

  232. United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990).

  233. United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991); Ayala, 894 F.2d at 426.

  234. See, e.g., Robbins, supra note 220, at 681–82; Ejelonu v. I.N.S., 355 F.3d 539, 546–47 (6th Cir. 2004); Villafranco, 2006 WL 1049114, at *11.

  235. Villafranco, 2006 WL 1049114, at *11 (quoting United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991)).

  236. Id.; Ejelonu, 355 F.3d at 548.

  237. Villafranco, 2006 WL 1049114, at *10 (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  238. Villafranco, 2006 WL 1049114, at *11.

  239. 543 U.S. 220 (2005).

  240. Id. at 246.

  241. Robbins, supra note 220, at 672.

  242. United States v. Ghebreziabher, 701 F. Supp. 115, 116–17 (E.D. La. 1988).

  243. Id. at 116.

  244. Remarking that “[i]t is apparent that he was approached by the other individual involved to accept the food stamps initially,” the court continued:

    Mr. Ghebreziabher has been an industrious member of this community for almost ten years. He has four United States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home . . . . Except for these 3 incidents, he has no convictions. His former employer, a subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working . . . . It is also likely that his family will suffer tremendously should he be deported and removed from the home.

    Id. at 116–17.

  245. United States v. Salgado, 692 F. Supp. 1265, 1268 (E.D. Wash. 1988).

  246. Id.

  247. Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in scattered sections of 8 U.S.C. and 18 U.S.C., including at 8 U.S.C. §§ 1229, 1366–74).

  248. One other person initially received audita querela relief even after the passage of IIRIRA, as her request for immigration relief was quite distinct from the circumstances of the three individuals discussed above. Ijeoma Ejelonu petitioned for relief after the Immigration and Naturalization Service (now Immigration and Customs Enforcement) inexplicably delayed processing her application for citizenship until after her eighteenth birthday, denying her citizenship and threatening to begin deportation proceedings against her. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004), rehearing en banc granted, opinion vacated, appeal dismissed. Ejelonu, originally from Nigeria, legally immigrated to the U.S. at age six with her parents and two younger sisters, all of whom were granted citizenship. Ejelonu graduated with honors from her high school, began college at Wayne State University, and maintained steady employment until the time of her arrest on criminal charges. Id. at 541–42. At age seventeen, she was charged as a juvenile with two counts of embezzlement. Id. at 542. She entered into a youthful offender program that permitted her to plead guilty to the charge, but without a judgment of conviction being entered. Id. at 542–43.

    Despite her record being sealed, someone at INS obtained a copy of the record and began deportation proceedings against Ejelonu. Id. at 543. Authorities raided the Ejelonu home, seized Ejelonu, and held her for weeks, without any way to contact her family. Id. at 543. An immigration judge found her deportable for having a “conviction” for a crime of moral turpitude, and the Bureau of Immigration Appeals dismissed her appeal. Id.

    Ejelonu petitioned the U.S. Court of Appeals for the Sixth Circuit for relief from deportation proceedings, which the court construed as a petition for audita querela. Id. at 544. The court found, “[w]e have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where a reasonable person might sympathize with her plight, but to extent that to deport her under such circumstances would shock the conscience.” Id. at 550. It continued, “Audita querela is appropriate because it would be contrary to justice[] to allow the collateral consequences of Petitioner’s Youthful Trainee status to justify her deportation.” Id. at 551–52 (quotations and citation omitted). The writ prohibited the Department of Homeland Security from using Ejelonu’s youthful trainee status in determining her eligibility for deportation. Id. at 552.

    Ultimately, the record is unclear as to what happened with Ejelonu. After granting a motion for rehearing en banc and vacating the panel’s opinion, the en banc court dismissed Ejelonu’s appeal by stipulation of the parties ten months after the initial decision. Ejelonu v. I.N.S., No. 01-3928, 2004 U.S. App. LEXIS 15581, at *1 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004); Sanchez-Montes v. Dept. Homeland Security, No. 8:08-CV-157-T-27-TBM, 2008 WL 298967 n.10 (M.D. Fl. Jan. 31, 2008) (noting the appeal was dismissed by stipulation of the parties). Little is in the record that provides any indication as to why the parties decided to proceed in this manner.

  249. Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *1 (W.D. Wash. Jan. 18, 2008).

  250. Id.

  251. Id. at *1–3.

  252. Id. at *3.

  253. Id. at *2 (quotations and citation omitted).

  254. Id. at *5 (quotations and citation omitted).

  255. Id. (quotations and citation omitted).

  256. Id. at *6–7.

  257. United States v. Kenney, No. 99-cr-0280, 2017 WL 621238, at *1 (M.D. Pa. Feb. 15, 2017).

  258. Id.

  259. Id.

  260. Id.

  261. Id.

  262. Id. at *2.

  263. Id.

  264. Id. at *4.

  265. See, e.g., State v. Rosenfield, 142 A.3d 1069, 1076 n.6 (Vt. 2016) (“There is also a strong possibility that the related doctrine of audita querela can be utilized to collaterally attack defendant’s conviction.”); Commonwealth v. Mubarak, 68 Va. Cir. 422 (2005) (granting audita querela petition); Pitts v. State, 501 S.W.3d 803, 804 (Ark. 2016) (granting petitioner’s request to reinvest trial court with jurisdiction to pursue writ of audita querela or writ of coram nobis); Balsley v. Commonwealth, 428 S.W.2d 614, 616–17 (Ky. 1967) (explaining that audita querela and coram nobis are preserved in Kentucky law).

  266. See, e.g., State v. Hinson, 2006 WL 337031, at *2–3 (Del. Super. Ct. Feb. 10, 2006); State v. Ali, 32 A.3d 1019, 1024 (Me. 2011); State v. Davis, No. 96,688, 2007 WL 2080461, at *1 (Kan. Ct. App. July 20, 2007) (per curiam); Huston v. State, 272 S.W.3d 420, 421 (Mo. Ct. App. 2008); State v. Myers, No. 2017-UP-260, 2017 WL 4641444, at *1 (S.C. Ct. App. June 28, 2017).

  267. See, e.g., In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”).

  268. Compare Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697 (2017) (discussing how crafters of the Federal Rules of Criminal Procedure made the intentional decision to ground them in legal rules and principles rather than equitable ones), with Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987) (discussing how the Federal Rules of Civil Procedure were crafted to embrace equitable rules and principles).

  269. Meyn, supra note 267, at 699; Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev. (forthcoming 2021) (on file with author), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657250 [https://perma.cc/VA7S-D8C9] [hereinafter Meyn, Separate and Unequal].

  270. See Meyn, Separate and Unequal, supra note 268 (discussing why and how federal criminal procedure rules ended up diverging from civil procedural rules to the advantage of the prosecution and disadvantage of the defense).

  271. According to several recent studies, fewer than 3% of state and federal criminal cases result in a jury trial. Nat’l Assoc. Crim. Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 5 & n.2 (2018); see also Hon. Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99, 102–04 (2018) (arguing that what were once trial judges and criminal trial attorneys now function more as “sentencing judges” and “sentencing advocates,” respectively).

  272. See, e.g., Meyn, supra note 267, at 732 (noting a “historical resistance to considering the rights of a criminal defendant”); Meyn, Separate and Unequal, supra note 268, at 3.

  273. See, e.g., Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465 (2019); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010).

  274. Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary

    77 (2015);

    Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 99 (2008); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 99–100 (1998).

  275. Blackmon, supra note 273, at 64, 66.

  276. Pope, supra note 272, at 1528–29.

  277. Id. at 1529; Meyn, Separate and Unequal, supra note 268, at 3.

  278. Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.‌cc/Q7PB-A4H6].

  279. See, e.g., Nazgol Ghandnoosh, The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Sept. 3, 2014), https://www.sentencingproject.org/publications/race-and-punishment-racial-perceptions-of-crime-and-support-for-punitive-policies/ [https://perma.cc/GD4R-J86L].

  280. See, e.g., Rafael Prieto Curiel & Stephen Richard Bishop, Fear of Crime: The Impact of Different Distributions of Victimisation, Palgrave Comm (Apr. 17, 2018), https://doi.org/10.1057/s41599-018-0094-8 [https://perma.cc/T6G6-NSGG].

  281. Id at 2.

  282. Ghandnoosh

    ,

    supra note 278.

  283. See, e.g., Meyn, supra note 267, at 722 (quoting Hearing Before the Advisory Committee on Rules of Criminal Procedure, United States Supreme Court at 466 (Sept. 8–9, 1941) (statement of Asst. Att’y Gen. Holtzoff)).

  284. Jerome Hall, Objectives of Federal Criminal Procedural Revision, 51 Yale L.J. 723, 730 (1942).

  285. Id. at 728.

  286. Id.

  287. See Anna Roberts, Convictions as Guilt, 88 Fordham L. Rev. 2501 (2020); Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014).

  288. Bowers, supra note 286, at 997.

  289. Id. at 999. Bowers takes the accuracy of the guilt determination as the key; Roberts, meanwhile, draws even the accuracy of guilt determinations into question. See Roberts, supra note 286.

  290. Any doubt about this should be put to rest by the judicial and legislative responses to the so-called “progressive prosecutors” who have been elected in recent years. See, e.g., Richard A. Oppel Jr., These Prosecutors Promised Change. Their Power Is Being Stripped Away, N.Y. Times (updated Dec. 2, 2019), https://www.nytimes.com/2019/11/25/us/prosecutors-criminal-justice.html [https://perma.cc/54YQ-2FT5]; John Pfaff, A No-Holds-Barred Assault on Prosecutors, Appeal (Aug. 13, 2019), https://theappeal.org/bill-barr-prosecutors/ [https://perma.cc/8SNZ-P4DU]; Soares v. State, 121 N.Y.S.3d 790, 799–800 (N.Y. Sup. Ct. 2020).

  291. I am drawing here on Anna Roberts’s definitions of “legal guilt” and “factual guilt.” She defines “legal guilt” as “a procedurally valid conviction.” Anna Roberts, Arrests as Guilt, 70 Ala. L. Rev. 987, 994 (2019). By contrast, “factual guilt” requires a person to have committed the crime, meaning the person had the requisite actus reus and mens rea and no defense that would negate her guilt. Id. at 990.

  292. See, e.g., Blackmon, supra note 273, at

    7, 67

    (noting the lack of process, including the pretrial practice of “confess[ing] judgment” for Black men who were dubiously convicted of crimes and then subjected to forced labor)

    .

  293. See, e.g., House v. Bell, 547 U.S. 518, 522 (2006) (finding that a convicted man claiming actual innocence had met the stringent requirements necessary to proceed with a habeas appeal despite the procedural default rule); Herrera v. Collins, 506 U.S. 390, 400 (1993) (noting that claims of actual innocence based on newly discovered evidence do not give ground to federal habeas relief without an independent constitutional violation because the purpose of federal habeas is to remedy constitutional violations, not factual errors).

  294. Yet, as Roberts cogently points out,

    Our system for determining legal guilt, which sets up various processes and protections that must be honored in order to permit a valid declaration of legal guilt, is the primary proxy that we have for factual guilt. For all its imperfections, it is the best that we currently have. Only an all-seeing, all-knowing entity could speak with absolute accuracy and authority on factual guilt, and as mentioned earlier, even she would be unable to provide a definitive answer regarding certain charges that have an inescapably subjective component.

    Roberts, supra note 290, at 994–95 (footnotes omitted).

  295. See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017).

  296. 543 U.S. 220 (2005).

  297. See, e.g., Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 Yale L.J. 2043, 2044 (1992).

  298. Booker, 543 U.S. at 236–39, 244.

  299. See, e.g., William Rhodes, Ryan Kling, Jeremy Luallen & Christina Dyous, Federal Sentencing Disparity

    : 2005

    –20

    12

    at 67–68 (Bureau of Just. Stats., Working Paper, WP-2015:01, 2015) (noting that racial disparity in sentencing between Black and White males has increased since Booker).

  300. Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 111–22 (2014).

  301. Klinck, supra note 40, at 5.

  302. Id.

  303. Id. at 34.

  304. Id. at 33.

  305. Id. at 38.

  306. Id. at 268 (“If conscience relates, more or less exhaustively, to one’s whole spiritual condition, to whether one is in a state of grace or not, then it fits awkwardly with a concept of law as essentially general, externally-dictated rules.”).

  307. Id. at 207.

  308. Id. at 208.

  309. Id.

  310. Id. at 224.

  311. In order to ensure equity’s survival, the chancery had to effectively respond to these criticisms. The chancery had to “present what it dispensed as being more like regular law.” Id. at 225. “[R]egular equity,” in the words of Lord Nottingham, had to “speak as much to order and consistency of process” as common law, which meant that equity needed to follow some rules, both procedural and substantive. Id. at 253. Thus arose a distinction between “regular” or “chancery” equity and a broader conception of equity. “Regular equity,” or “chancery equity” became regulated and ruled, less strictly than the common law initially, id. at 253–54, but ultimately, in a manner not so different.

  312. Samet

    ,

    supra note 41, at 2.

  313. Id. at 10.

  314. Id. at 11.

  315. Id. at 44.

  316. Id. at 46.

  317. Id. at 49.

  318. Id. at 52.

  319. Id. at 57 (quoting Jeremy Waldron, Inhuman and Degrading Treatment: The Words Themselves, 23 Can. J. L. & Juris. 269, 284 (2010)).

  320. Id. at 58–59.

  321. Id. at 61.

  322. 572 U.S. 701, 708 (2014) (citing Weems v. United States, 217 U.S. 349, 378 (1910) & Trop v. Dulles, 356 U.S. 86, 101 (1958)) (internal quotations omitted).

  323. Of course, many would assert that the Supreme Court has abdicated its moral duty with regard to its Eighth Amendment “evolving standards of decency” jurisprudence. Cf. United States v. Higgs, No. 20-927, slip op. at 1–2, 5–8, 10 (U.S. Jan. 12, 2021) (Sotomayor, J., dissenting) (criticizing the Court’s recent decisions not to intervene in cases involving federal exactions, including in a case involving a likely successful Eighth Amendment challenge).

  324. Romar v. Fresno Cmty. Hosp. & Med. Ctr., 583 F. Supp. 2d 1179, 1186 (E.D. Cal. 2008) (citing Richardson v. Kier, 34 Cal. 63, 75 (1867)).

  325. Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev.

     

    99, 112–13 (2015) (discussing empirical evidence that judges still tend to be White, male, older than the average American, and much more educated).

  326. Pope, supra note 272, at 1527.

  327. 163 U.S. 537 (1896).

  328. 323 U.S. 214 (1944).

  329. Plessy, 163 U.S. at 543.

  330. Id. at 550–51 (emphasis added).

  331. Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954).

  332. Korematsu, 323 U.S. at 216, 218.

  333. Korematsu v. United States, 584 F. Supp. 1406, 1416–19 (N.D. Cal. 1984).

  334. Id. at 1419.

  335. Id. at 1413.

  336. Samet

    ,

    supra note 41, at 61.

  337. See, e.g., Susan A. Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law, Culture & Humans 293, 295–97 (2007); Michael Tonry, Rethinking Unthinkable Punishment Policies in America, 46 UCLA L. Rev. 1751, 1781–86 (1999); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order 3–28 (1978); Stanley Cohen, Folk Devils & Moral Panics: The Creation of the Mods and Rockers (Routledge Classics 2011) (1972).

  338. Bandes, supra note 336, at 294 (footnotes omitted).

  339. Tonry, supra note 336, at 1787 (footnotes omitted).

  340. Id. at 1787–88.

  341. Id. at 1788.

  342. Bandes, supra note 336, at 294.

  343. Id. at 301.

  344. Id. at 294.

  345. Id. at 310 (quoting Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty 34 (2003)).

  346. Id. at 309–10, 312.

  347. Id. at 313–14.

  348. Id. at 296.

  349. Tonry, supra note 336, at 1753.

  350. Id. at 1756.

  351. Bandes, supra note 336, at 296, 315–16.

  352. In the criminal legal system, morality will almost always be at play because the criminal law is anchored in morality; it is a “functional mechanism that helps set and then illuminate the boundaries of acceptable behavior.” Tonry, supra note 336, at 1764.

  353. Samet

    ,

    supra note 41, at 6 (“[A] clear division between Equity and Common Law in the US is mostly restricted to the area of remedies . . . .”). This is distinct from England and Wales, where equity affects large areas of substantive private law. Id.

  354. Id. at 16–17.

  355. Bey v. United States, Crim. No. 03-18-1, 2009 WL 1033655, at *1 (D. Del. Apr. 16, 2009).

  356. The Second Chance Act of 2007, 18 U.S.C. §§ 3621, 3624.

  357. Bey, 2009 WL 1033655, at *3 n.1.

  358. Id. at *3.

  359. Id. Although Bey’s juvenile charges included attempted robbery, assault on a mail carrier, and obstructing passage of the U.S. mail, he asserted the obstructing passage charge was the only count of conviction. Id.

  360. Id.

  361. Id.

  362. Id. (quoting United States v. Dunegan, 251 F.3d 477, 480 (3d Cir. 2001)).

  363. As the court noted:

    A federal court invokes ancillary jurisdiction as an incident to a matter where it has acquired jurisdiction of a case in its entirety and, as an incident to the disposition of the primary matter properly before it. It may resolve other related matters which it could not consider were they independently presented. Thus, ancillary jurisdiction permits a court to only dispose of matters related to the original case before it. The doctrine of ancillary jurisdiction does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises. The Supreme Court in recent years has held that ancillary jurisdiction is much more limited.

    Dunegan, 251 F.3d at 478–79 (internal citations omitted).

  364. Id. at 479–80.

  365. Id. at 480 (quotations omitted).

  366. See, e.g., United States v. Sumner, 226 F.3d 1005, 1010–11 (9th Cir. 2000). But see United States v. Smith, 940 F.2d 395 (9th Cir. 1991) (listing cases where the Ninth Circuit recognized equitable power of the court to grant expungements in rare cases).

  367. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977).

  368. Id. (quotations omitted).

  369. Id.

  370. Id. (quotations omitted).

  371. Id. (quoting United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), cert. denied, 423 U.S. 836 (1975)).

  372. Id. at 540.

  373. Id. (citing Sullivan v. Murphy, 478 F.2d 938, 968–71 (D.C. Cir. 1973)).

  374. Id. (citing United States v. McLeod, 385 F.2d 734, 737–38 (5th Cir. 1967)).

  375. Id. (citing Wheeler v. Goodman, 306 F. Supp. 58, 66 (W.D.N.C. 1969)).

  376. Id. (citing Kowall v. United States, 53 F.R.D. 211, 212 (W.D. Mich. 1971)).

  377. Id. at 539.

  378. United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993).

  379. Id.; see also Geary v. United States, 901 F.2d 679, 679–80 (8th Cir. 1990) (holding that a federal court may only exercise its inherent equitable power to expunge in cases of extraordinary circumstances); Allen v. Webster, 742 F.2d 153, 154–55 (4th Cir. 1984) (same); Menard v. Saxbe, 498 F.2d 1017, 1023–25 (D.C. Cir. 1974) (same).

  380. United States v. Meyer, 439 F.3d 855, 859 (8th Cir. 2006) (emphasis added).

  381. 18 U.S.C. § 3607; 21 U.S.C. § 844.

  382. See, e.g., United States v. Travers, 514 F.2d 1171, 1175, 1179 (2d Cir. 1974) (granting expungement of a federal conviction after the Supreme Court rejected the statutory interpretation under which the conviction was affirmed; the court concluded that the defendant’s actions simply were not illegal). This author was unable to find any state cases where a court granted a writ of mandamus to expunge a criminal record.

  383. Interestingly, that was not always the case. In 1950 Congress passed the Federal Youth Corrections Act, which allowed eighteen- to twenty-six-year-olds to set aside their convictions if the court released them early from probation. As Margaret Colgate Love wrote in Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1709 & n.15, 1710 (2003):

    [T]he basic idea was to have a court grant relief that would be more complete than a pardon, and more respectable than an automatic or administrative restoration of rights. The purpose of judicial expungement or set-aside was to both encourage and reward rehabilitation, by restoring social status as well as legal rights.” Id. at 1710. The statute was repealed in 1984.

    Id. at 1716.

    In 1962, the National Council on Crime and Delinquency (“NCCD”) proposed a model statute that would give the court statutory authority to “annul” convictions. Id. at 1710. The intended effect was to restore a person’s civil rights and allow them to state that they had not been convicted when filling out applications. Id. The NCCD proposal also would have required employers and licensing boards to ask applicants: “Have you ever been arrested for or convicted of a crime which has not been annulled by a court?” Id. (footnote omitted).

    That same year, a provision of the American Law Institute’s Model Penal Code (“MPC”) empowered the sentencing court, “after an offender had fully satisfied the sentence, to enter an order relieving ‘any disqualification or disability imposed by law because of the conviction.’ After an additional period of good behavior, the court could issue an order ‘vacating’ the judgment of conviction.” Id. at 1711 (citing MPC § 306.6) (footnotes omitted). According to Love, the MPC provision “intended to accomplish the maximum by way of legal and social restoration for rehabilitated ex-offenders. But it was specifically not intended to remove the conviction from the records, or indulge the fiction that the conviction had somehow never taken place.” Id. at 1712 (footnotes omitted).

    The House Committee on the Judiciary undertook another sentencing reform bill that included provisions unreasonably restricting eligibility for public benefits and employment based on a federal conviction, extending the Youth Corrections Act to all first-time offenders so that all those records would be sealed for most purposes and the individual could deny the conviction. Id. at 1715–16. “The goal of the legislation was to restore the convicted person to the same position as before the conviction.” Id. at 1716 (quotations omitted). This bill was ultimately defeated by the competing Senate bill, the Sentencing Reform Act of 1984. Id.

  384. Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev.

     

    233, 234–35 (2018); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 627 (2006).

  385. Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 302 (2015).

  386. Chin, supra note 383, at 235; Lollar, supra note 299, at 123–30; Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103, 1104–09 (2013).

  387. J. McGregor Smyth, Jr., From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings, Crim. Just., Fall 2009, at 42, 42.

  388. The need for such writs would likely be minimized if the legal system were to adopt I. Bennett Capers’s recommendations for returning some prosecutorial authority to the people. I. Bennett Capers, Against Prosecutors, 105 Cornell L. Rev. 1561 (2020).

  389. Petition for Peremptory Writ of Mandamus (In the First Instance) at 2, State ex rel. Vernon v. Adrine, No. 103149 (Ohio Ct. App. 2015), https://www.scribd.com/document/2690‌46322/Writ-of-Mandamus-Peremptory-in-Tamir-Rice-case [https://perma.cc/LS58-QVZH].

  390. Ohio Rev. Code Ann. § 2935.09(D) (LexisNexis 2006).

  391. Petition for Peremptory Writ, supra note 388, at 2–3.

  392. Id. at 3.

  393. Ohio Rev. Code Ann. § 2935.10(A) (LexisNexis 1973).

  394. Id.

  395. State ex rel. Vernon v. Adrine, No. 103149, 2015 WL 4389579, at *1 (Ohio Ct. App. 2015).

  396. Id. at *3.

  397. Id. at *4 (Laster Mays, J., dissenting).

  398. 477 F.2d 375 (2d Cir. 1973).

  399. Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy 153–­54, 170 (2016) (citations omitted).

  400. Jeff Z. Klein, Niagara Frontier Heritage Project, Heritage Moments: The Attica Prison Uprising – 43 Dead and a Four-Decade Cover-Up, NPR (Sept. 10, 2018), https://news.wbfo.‌org/post/heritage-moments-attica-prison-uprising-43-dead-and-four-decade-cover [https://perma.cc/TL3L-M94T]. The eleven included prison guards and civilian workers. Id. Although one prison guard and three of those incarcerated appear to have been killed prior to state police entering the prison, id., the remainder of the deaths were at the hands of state police. Thompson, supra note 398, at 230–31, 238–39.

  401. Inmates of Attica, 477 F.2d at 378.

  402. Id. at 377.

  403. Id. at 379 (quoting United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968)).

  404. Id.

  405. Id.

  406. Id. at 379–80 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)).

  407. Id. at 380.

  408. Id. The court went on:

    At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e.g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws?

    Id.

  409. Id. at 380–81 (internal citations omitted).

  410. Id. at 382.

  411. See, e.g., Sanders-El v. Commonwealth, No. 2010-CA-001964-MR, 2011 WL 2935854, at *1–2 (Ky. Ct. App. July 22, 2011); Konya v. Dist. Att’y of Northampton Cnty., 669 A.2d 890, 892–93 (Pa. 1995); Bartlett v. Caldwell, 452 S.E.2d 744, 744 (Ga. 1995); Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (per curiam); Powell v. Katzenbach, 359 F.2d 234, 234 (D.C. Cir. 1965) (per curiam).

  412. State ex rel. Capron v. Dattilio, 50 N.E.3d 551, 553 (Ohio 2016); State ex rel. Evans v. Columbus Dept. of Law, 699 N.E.2d 60, 61 (Ohio 1998) (per curiam).

  413. Cf. Capron, 50 N.E.3d at 553.

  414. Under Ohio’s law, a judge does not abuse her discretion if she refers the case to the prosecutor’s office for further investigation; such a referral discharges the judge’s duty under the statute. See, e.g., State ex rel. Brown v. Nusbaum, 95 N.E.3d 365, 367–68 (Ohio 2017); State ex rel. Strothers v. Turner, 680 N.E.2d 1238, 1239 (Ohio 1997) (per curiam).

  415. Relatedly, courts almost always deny writs of mandamus when the defendant has cooperated in a criminal case after sentencing and seeks to have the court require the government to recommend a reduction in sentence for providing “substantial assistance” under Rule 35(b). See, e.g., United States v. Mells, 481 F. App’x 563, 564–66 (11th Cir. 2012) (per curiam); United States v. Duncan, 280 F. App’x 901, 903–04 (11th Cir. 2008) (per curiam); United States v. Tadlock, 346 F. App’x 977, 978 (4th Cir. 2009) (per curiam); United States v. Murray, 437 F. App’x 103, 105 (3d Cir. 2011) (per curiam).

  416. See, e.g., United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007). But see Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir. 2000) (finding violation of due process when state prosecuted two different defendants on factually contradictory theories); Thompson v. Calderon, 120 F.3d 1045, 1050–51 (9th Cir. 1997) (en banc) (noting that “a serious question exists as to whether [the defendant] was deprived of due process of law by the prosecutor’s presentation of flagrantly inconsistent theories . . . to the two juries that separately heard” the two co-defendants’ cases), rev’d on other grounds, 523 U.S. 538 (1998).

  417. See supra Subsection I.C.1.b.

  418. 548 U.S. 140 (2006).

  419. Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 545–47 (2007).

  420. Gonzalez-Lopez, 548 U.S. at 145.

  421. Id.

  422. Id. at 147–48 (footnotes omitted).

  423. Id. at 146.

  424. Id. at 148.

  425. Id. at 151.

  426. Id. at 152 (citations omitted).

  427. Justice Scalia wrote:

    We have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds,’—or indeed on whether it proceeds at all.

    Id. at 150 (citations omitted).

  428. Norman Lefstein, In Search of Gideon’s Promise: Lessons from England and the Need for Federal Help, 55 Hastings L.J. 835, 917 (2004).

  429. Id. at 918.

  430. Id. at 919.

  431. Id. at 863, 886.

  432. Id. at 863.

  433. Compare id. at 868 (“[T]here is little retained criminal defense work in England.”) with Hoeffel, supra note 418, at 545 (“[O]nly . . . ten percent of criminal defendants . . . retain counsel . . . .”).

  434. Lefstein, supra note 427, at 893.

  435. Id.

  436. Id. at 915.

  437. Id.

  438. Id.

  439. Hoeffel, supra note 418, at 540–42.

  440. Id. at 543–44.

  441. Id. at 544–45.

  442. Id. at 548; United States v. Gonzalez-Lopez, 548 U.S. 140, 146–48 (2006).

  443. Moran, supra note 121, at 1341–42.

  444. In re United States, 397 F.3d 274, 286–87 (5th Cir. 2005).

  445. District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008).

  446. United States v. Choi, 818 F. Supp. 2d 79, 82 (D.D.C. 2011).

  447. Wolitz, supra note 163, at 1292–99.

  448. United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988) (requiring the petitioner to “demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences)”).

  449. Id. at 203; United States v. Bush, 888 F.2d 1145, 1148–50 (7th Cir. 1989).

  450. See supra Subsection I.C.2.

  451. United States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990).

  452. Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. United States, 392 U.S. 40, 55–57 (1968)).

  453. Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *2 (W.D. Wash. 2008) (internal quotations omitted).

  454. Id. at *5.

  455. Id. (internal quotations omitted).

  456. Id. at *6.

  457. Fountain, supra note 221, at 241–45; Teague v. Lane, 489 U.S. 288, 310 (1989) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

  458. Fountain, supra note 221, at 239 (quoting Carrington v. United States, 503 F.3d 888, 893 (9th Cir. 2007)).

  459. Ejelonu v. I.N.S., 355 F.3d 539, 548 (6th Cir. 2004); Fountain, supra note 221, at 239.

  460. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  461. A State-by-State Look at Coronavirus in Prisons, Marshall Project (updated Nov. 12, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/YRN2-NPXR].

  462. Id.

  463. Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, Health Affs. Blog (Mar. 26, 2020), https://www.health‌affairs.org/do/10.1377/hblog20200324.784502/full/ [https://perma.cc/H6FV-TNT5].

  464. Id.

  465.  Kelly Davis, Coronavirus in Jails and Prisons, Appeal (July 30, 2020), https://theappeal.org/coronavirus-in-jails-and-prisons-36/ [https://perma.cc/E6AP-Q2XR].

  466. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  467. Numerous thoughtful and consequential proposals abound, including discussions about abolishing prisons, see, e.g.,

     

    Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California

    (2007);

    Angela Y. Davis, Are Prisons Obsolete?

    (2003);

    defunding the police and putting that funding into other resources, such as housing and education, see, e.g., Keeanga-Yamahtta Taylor, How Do We Change America?,

     

    New Yorker (June 8, 2020), https://www.newyorker.com/news/our-columnists/how-do-we-change-america?itm_content=footer-recirc [https://perma.cc/J6GB-2PWC]; Amna A. Akbar, How Defund and Disband Became the Demands, N.Y. Rev. Books (June 15, 2020), https://www.nybooks.com/daily/2020/06/15/how-defund-and-disband-became-the-demands/ [https://perma.cc/UZ2P-B82Q]; investing in restorative justice programs, see, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair

    (2019);

    and democratizing criminal justice processes, see, e.g., K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of Community Control, 108 Calif. L. Rev. 679 (2020); Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249 (2019); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281 (2014/2015).

  468. Despite the typically slow pace of change, sometimes an event triggers unusually rapid systemic change. The killing of George Floyd by a police officer in Minneapolis appears to have been one of those triggers. Since his death on May 25, 2020, numerous states have initiated police conduct and criminal procedure reforms that typically occur after years of work. See, e.g., Weihua Li & Humera Lodhi, The States Taking on Police Reform After the Death of George Floyd, FiveThirtyEight & Marshall Project (June 18, 2020, 3:00 PM), https://fivethirtyeight.com/features/which-states-are-taking-on-police-reform-after-george-floyd/ [https://perma.cc/DT4D-T55V]; Orion Rummler, The Major Police Reforms Enacted Since George Floyd’s Death, Axios (updated Oct. 1, 2020), https://www.axios.com/police-reform-george-floyd-protest-2150b2dd-a6dc-4a0c-a1fb-62c2e999a03a.html [https://perma.‌cc/4NTE-QYL3]. Perhaps, then, systemic changes are on the horizon, making the need for the proposals in Part III of this Article less essential. Yet even in a world of reduced funding for police and less incarceration, equitable remedies play an important role in seeking and obtaining justice.