Second strikers taxing California's struggling prison system as numbers rise at unprecedented rate

Offenders convicted of second strikes under California's "Three Strikes" law are flooding the prison system, according to state officials.

From the 2011-2012 and 2012-2013 fiscal years, new admissions of second strikers went up about 33 percent — a jump unprecedented in California history.

According to prison officials' population projections, "there were 5,492 second strike admissions in fiscal year 2012-13, which is 32.6 percent higher than the previous fiscal year." That's also the highest number of second strikers admitted to prison since 1998-1999. 

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Enacted in 1994, the Three Strikes law did two big things. The first is that for anyone who has committed two previous serious or violent felonies, it increased the penalty for any third felony to 25 years to life in prison. And for "second strikers" — anyone who commits any felony after previously committing a serious or violent felony — their sentence was automatically doubled. 

Third strikers have gotten a lot of attention since the law passed, like the story of the L.A. man sent to prison for life for stealing a slice of pizza (from a group of children, to be fair). A judge later reduced his sentence, and he spent about six years in prison, but the "pizza thief" remained an emblem of a movement to reform Three Strikes. Which California voters eventually decided to do in 2012 with Proposition 36, which required a third strike be a serious or violent felony, not a lower-level crime like drug possession — or pizza theft.

The lesser-publicized second strike rule, however, hasn't changed. And now state officials worry the proliferation of second strikers is making it difficult for California to lower its prison population enough to meet court-ordered levels.

In 2011, the U.S. Supreme Court upheld a lower court's order finding conditions in California's prisons unconstitutional due to overcrowding — and ordered the state to rapidly reduce its prison population or build more facilities. California opted to reduce the number of people in prison, and it has. As of now, the state has about two years to cut about another 5,000 inmates from the prisons.

The approximately 35,000 second strikers, with their lengthy prison terms, are proving a major obstacle. About 24,000 of them are in prison on a non-violent second-strike offense.

"We're certainly concerned that if this trend in increased admissions continues, it is going to make it harder for the state to comply," said Aaron Edwards, senior analyst at the non-partisan Legislative Analyst's Office. "The state will have to figure out some kind of way to accommodate them."

That means either finding a facility for them, or figuring out a way to cut admissions, Edwards said. And cutting admissions likely means figuring out why the population has increased in the first place.

Edwards said no one's quite sure what could explain the increase, as it's likely the result of several factors. His best guess is the increase is a consequence of prison realignment, which shifted responsibility for lower-level offenders and parolees to the local, county level.

"Prior to realignment, individuals who were on parole could be sent back to prison for a parole violation," Edwards said. That meant a technical violation (like not showing up for a meeting) or a new crime (like theft). Now, parole violations either get jail time, or as Edwards suspects, get prosecuted as new crimes — sometimes resulting in second-strike convictions.

Another possibility is county prosecutors, dealing with overcrowded jails and frustration with "lighter" post-realignment sentences, could be deciding to charge more offenders with strikes to make sure they go to prison instead of jail or probation. 

A snapshot of county-by-county data obtained from the California Department of Corrections and Rehabilitation shows certain counties had dramatic spikes in second-strike charges from one year to the next.

Riverside County, for instance, saw a 33.6 percent increase in second strikers sent to prison from November 2011-June 2012, compared to the same period a year later. A number of Central Valley counties, like Fresno, Stanislaus, San Joaquin and Merced also saw dramatic increases. 

Admissions from Los Angeles and Orange counties remained relatively stable. It's unclear whether the county numbers indicate deliberate policies by prosecutors.

"It's always really hard to prove up-charging is happening," Edwards said. "You'd really have to talk with prosecutors and see what their reasoning is."

Mark Zahner, CEO of the California District Attorneys Association, said he has spoken with prosecutors in nearly every county in the state. 

"As far as I can discern, there's no concerted effort or change in policy or anything to try to charge things differently than they did before realignment," Zahner said.

He said a one-year trend is hard to explain, and might just be a blip. 

If it isn't, prison officials will have to figure out a way to deal with the problem. They have some relief from the constraints of the second strike law from the courts.

In granting an extension for lowering the prison population last month, the federal courts ordered California to increase its good-time credits for second strikers currently in prison. The court also ordered the state to create a parole process for second strikers convicted of non-violent offenses who've served at least half of their sentence.