DETERMINATE SENTENCING, PLEA BARGAINING BANS, AND HYDRAULIC DISCRETION IN CALIFORNIA

Abstract

Many state legislatures have passed sentencing legislation designed to increase punishment severity. More recently, some jurisdictions such as California have undertaken to supplement sentencing innovations with plea bargaining restraints. This article briefly reviews California legislation on determinate sentencing and a recent plea bargaining limitation, and then assesses their impact on prison over crowding. Prison sentence lengths have not increased, but the number of convicted felons sent to prison has. In turn, the prisons have become dangerously overcrowded. Though we cannot be sure that legislative innovations are entirely responsible for the problem in California prisons, nevertheless trial judges can and do take account of overcrowding both in criminal adjudication and in civil litigation. * *