Collateral Attacks on Convictions (I): The Probability and Intensity of Filing

Abstract

In the beginning of the 1970s the increased activity of filing collateral attacks on criminal convictions (postconviction petitions) made by prisoners in an effort to modify either the conviction or the sentence generated concern about the additional burdens imposed on the courts. This article is the first report of a study undertaken to quantify and analyze postconviction filings and their eventual disposition under various procedures, as reflected by the variety of procedures and degrees of accessibility to the courts in the states of Illinois, California, Texas, and Colorado. The present article describes and analyzes postconviction filing activity for these four states in terms of the probability of filing; the frequency of filing (the mean number of filings per filer and the number of filings per thousand prisoners); how long after incarceration filing took place; and patterns of filing over time. It is shown that contrary to widespread belief the notion that “every prisoner files” is not justified. The author concludes that the perceived high number of collateral attacks, not necessarily supported by the figures, stems from a large number of filings (except for Illinois) generated by a small proportion of prisoners. The author points out that modifications of the petitioning process can have a significant effect on the rate of filing and suggests changes in regulations that are likely to reduce the total number of petitions.