The crime of being homeless

The crime of being homeless

San Francisco prosecutors crack down on quality-of-life crimes

By Amanda Witherell

Sleeping in the park, urinating in public, blocking the sidewalk, trespassing, drinking in public — these and about 10 other infractions are commonly and collectively known as “quality of life” crimes because they affect the condition of the common spaces we all share in San Francisco.

For a homeless individual, they’re also called “status” crimes, committed in the commons because there is no private place to sleep, go to the bathroom, or crack a beer. For years the District Attorney’s Office hasn’t bothered to allocate time or resources to prosecute these petty crimes, and advocates for the rights of homeless people have contended that to do so results in unfair persecution of those who have no place to call home.

Elisa Della-Piana is an attorney with the Lawyer’s Committee for Civil Rights and has spent much of the past three years in traffic court arguing against fines for homeless people who have received quality-of-life citations. As of this summer, Della-Piana said things have changed down at the Hall of Justice.

Now every time she stands up to represent a homeless person in traffic court, someone from the DA’s Office gets up too, fighting for the other side. Though there’s no way to tell from the traffic court calendar if the defendant is homeless, Della-Piana and Christina Brown, another attorney who represents through the Lawyer’s Committee, have witnessed prosecutors ignore quality-of-life citations that didn’t appear to have been collected by homeless people.

“When the person is homeless and the DA stands up and prosecutes, that’s selective prosecution. They’ve done that in the past with other populations in San Francisco,” Jenny Friedenbach of the Coalition on Homelessness said, citing historic crackdowns on queers and Asians.

Deputy district attorney Paul Henderson denied the DA’s Office is selectively prosecuting only quality-of-life citations received by homeless individuals. “We’re prosecuting all of them,” he told the Guardian, confirming this is a new task for the office. “In the past the DA’s Office wasn’t staffed to have people in the courtroom. I think we’re there every day now.” He said more staff has been hired, and a team he heads is now devoted to the issue.

When asked why this was a new priority for the DA’s Office, Henderson said, “We felt that people weren’t getting the help they needed. The public’s interest wasn’t being served. [These issues] were not getting addressed in the traffic court without the DA being there. Neighborhoods and communities have been complaining about the lack of responsiveness, and so we’re trying to address that.”

Henderson called the day in court an open door for a homeless person to walk through and access services. “We want to handle them responsibly to make sure there’s some accountability for breaking the law, but try to do it in a way that’s an intervention.”

But advocates for homeless rights say that’s not what happens.

“They’ll tell you we’re there to offer services to homeless individuals,” Della-Piana said. “Which is a piece of paper. In fact, what they have is the same list of services the police pass out. They’re not actually doing anything to connect people to the services. They’re just offering the list. They could offer those services in the street. There’s no reason to go through the court system.”

This list of homeless resources is updated every six months by the San Francisco Police Department’s Operation Outreach and is offered on the street, according to Lt. David Lazar, leader of the 20-officer branch of the SFPD that interfaces directly with the homeless population.

“The accountability is a problem, and the process they go through is not working,” Lazar said. “There’s a large population we’re seeing that doesn’t want services.” He listed three reasons: inadequacies in the shelter system, a desire to be left alone, and a mental health or substance abuse problem that impairs judgment. “If we could house absolutely everyone, what would they do during the daytime?” he asked. “You need intensive case management, job support, substance abuse support.”

But homeless-rights advocates say the stability of housing is the first step toward improving the quality of life for the homeless. Della-Piana said, “Ninety-five percent of my clients come to me and say, ‘I’m getting social services.’ They point to something on the list and say, ‘I’m doing this.’ They’re doing everything they’re supposed to be doing, but they don’t have housing yet. That’s why people are still sleeping in the park.”

Henderson said critics of the new tack “aren’t recognizing that laws are being broken. People’s qualities of life are being dragged down by these violations. If it’s your street, your door, and there’s feces on it every day, that affects your quality of life.”

Ticketing the homeless is not a new thing. Two homeless-rights groups — Religious Witness with Homeless People and the Coalition on Homelessness — have a standing Freedom of Information Act request with San Francisco Superior Court that provides a monthly tally of the infractions likely committed primarily by homeless people. According to their data, for the past 15 years the SFPD has averaged about 13,000 quality-of-life citations per year. Last year Religious Witness released a study showing that more than 31,000 citations had been issued during Mayor Gavin Newsom’s administration.

“For the police, the sheriff, and the court cost, we estimated it cost almost $6 million for those 31,000 citations,” said Sister Bernie Galvin, executive director of Religious Witness. Galvin said a new study, to be released at City Hall on Oct. 4, shows that citations and costs have skyrocketed in the past 14 months. “Now we’re putting in the dramatic new expense of the DA,” she said, adding, “Everyone wants to prosecute a greater number. It’s like it makes it justifiable to issue these 31,000 tickets if we can prosecute them. Actually, it makes it crueler and more expensive.”

Media reports have characterized the tickets as empty pieces of paper, issued and then metaphorically shredded when a homeless individual fails to pay the $50 to $500 fine. In a recent San Francisco Chronicle story, Heather Knight reported that “all quality of life citations are getting dismissed.” Yet when they don’t — and violators either don’t show up in court or can’t pay the fine — infractions become misdemeanors or an arrest warrant is issued, both of which become problems for people trying to access services.

“It backfires,” said Christina Brown, an associate at O’Melveny and Myers who volunteers time in traffic court representing homeless people through the Lawyer’s Committee. “When people are served with warrants, they’re precluded from services.” Even if the person cuts a deal with the DA to access services in lieu of paying a fine, they still have to return to court to prove they’ve done that. If they can’t get the paperwork or can’t make it to the court in time, it becomes a misdemeanor.

“The criminal justice system is actually making it harder if they want to find somewhere else to sleep,” said Della-Piana, who related an anecdote of a client who had a few open-container infractions. The client was afraid to go to court when she couldn’t pay the fines, so a warrant was issued. She’d spent the past seven years on the Department of Housing and Urban Development’s waiting list for public housing and got kicked off because of the misdemeanor.

Public Defender Jeff Adachi expressed concern that a dragnet is being created for arresting homeless people committing status crimes they have no control over. “We have to be very careful we’re not trying to legislate services through the criminal justice system. We do too much of that already,” he said. “This approach assumes that if a person is in trouble, they’re more likely to accept the services. I haven’t seen that is true.”

Henderson doesn’t necessarily agree that the criminal justice system shouldn’t play a role in assisting homeless people: “I want this citation to serve as a wake-up call for you.” He thinks people need to be held accountable and would like to see the city adopt the plan for a Community Justice Center, modeled after New York City’s, a vision that his boss, District Attorney Kamala Harris, and Newsom also share.

“We believe San Francisco has a unique infrastructure and need for the Community Justice Center. That’s why we are proposing to pilot this initiative in the Tenderloin and South of Market area, where more than a third of the city’s quality of life offenses occur,” Harris and Newsom wrote in a May 13 editorial in the Chronicle. “The center promises to give relief to the neighborhoods most affected by quality of life crimes.”

During an Oct. 1 endorsement interview with the Guardian, Newsom said he hoped to open the new center by December. Lazar, who sits on the committee that’s still hammering out the details for how exactly the center would work, agreed with Henderson that it’s the next step in more direct connection with services: “We’re trying to put the criminal justice system and the social justice system together.”

Della-Piana said this still ignores the black marks that misdemeanors leave, which become good reasons for some service providers to save their limited resources for people with clean records. “The two ideologies don’t mesh,” Della-Piana said. “My homeless clients want housing. There currently is not enough of it to go around. Arresting them instead of citing them for sleeping and other basic life activities will not change the availability of the most needed services.”

Originally published October 3, 2007 in the San Francisco Bay Guardian