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9 Just. Sys. J. 256 (1984)
Determinate Sentencing, Plea Bargaining Bans, and Hydraulic Discretion in California

handle is hein.journals/jusj9 and id is 258 raw text is: DETERMINATE SENTENCING, PLEA BARGAINING BANS, AND HYDRAULIC DISCRETION IN CALIFORNIA CANDACE McCOY* 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.** Introduction An often-invoked simile likens the discretion-ridden criminal justice system to a set of hydraulic brakes. If you push down on one point, the displaced volume of fluid will exert pressure and bulge out, reappearing elsewhere in the mechanism. Similarly, discretion in the criminal justice system can never be extinguished; it is simply dislodged and shifted to other system parts (Davis, 1969). The metaphor illustrates the point that concentrating on one particular component of the justice system when attempting to control abuses of discretion is probably a fruitless strategy. A corollary to the hydraulic theory is that, if discretion is carefully controlled in all system parts (and, of course, this means that each compo- nent still retains some measure of discretionary power, though it is care- fully bounded) then meaningful progress toward a professional, responsive justice system will be made. Many interesting questions arise from this latter formulation. They include: what accounts for displacement of discre- tion from one component to another? Can legislation significantly alter the distribution of discretion? In a political world, can courts properly shift the *Attorney General Research Fellow, California Department of Justice, Bureau of Criminal Statistics. * Opinions expressed in this article are those of the author and do not reflect positions of the California Department of Justice. The only official connection is that various data and reports were provided to the author by Department personnel, for which she extends many thanks. Also, for Department of Corrections data, the author wishes to thank Jim Rodoni and R.R. Bayquen; for Board of Prison Terms data, thanks to Gerri de Graaf. THE JUSTICE SYSTEM JOURNAL, Volume 9, Number 3 (1984)

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