Busting beggars
Panhandlers who were supposed to get services under Newsom's ballot measure are sometimes going to jail instead

By Rory Brown

Instead of care or cash, San Francisco panhandlers are receiving something else: citations. Despite the city's emphasis on helping members of the homeless community, the citations are translating into jail time for some of their indigent recipients.

In his proponent argument for Proposition M in August 2003, Gavin Newsom (who was then running for mayor) wrote, "Prop. M seeks to divert people who aggressively panhandle because of addiction or illness away from the jail system and into the public health system."

But busted panhandlers aren't always being diverted to the public health system, and they sometimes spend the time before their court dates in jail instead of in service programs. The San Francisco Police Department reports giving out 45 panhandling citations in the past year, but neither the police nor the District Attorney's Office has tracked how many of those have been arrested and jailed.

David Foster is one example of a panhandler who served time instead of getting help. Foster was picked up June 10 for violating the public panhandling restrictions and spent four days in jail.

Alleged to have been holding up a sign near a roadway, Foster was arrested and jailed. Under Prop. M, panhandling and solicitation is prohibited in five locations: near ATM machines, in parking lots, on public transit, on median strips, and on freeway on-ramps.

Instead of jail, Foster should have been routed to one of the homeless services called for by the voter-approved measure. Section F of Prop. M gives the Department of Public Health the mandate to "establish, administer and/or certify diversion programs appropriate for treatment of violators."

In addition to mental health and job counseling and rehabilitation programs, services provided include the Homeless Advocacy Project and Homeless Release Project, which offer (respectively) legal counseling and assistance leaving jail. Both groups help defendants arrive on time to their court hearings.

Panhandling is an infraction that doesn't bring jail time. After three infractions, future cases are handled as misdemeanors, making the defendant eligible for incarceration.

Foster's arrest was only his third panhandling charge, but Judge Kathleen Kelly refused his release anyway. It was only at that point that Foster's attorney, Deputy Public Defender Justyn Lezin, finally persuaded the Homeless Release Project to take him from jail to his next court hearing after a four-day jail stint.

In an e-mail to the Bay Guardian, DA's Office spokesperson Debbie Mesloh acknowledged the court's error. "In the case of David Foster, the court made a mistake – this case should have been in infraction, not misdemeanor, court." Because Foster was incorrectly sent to misdemeanor court, services weren't an immediate option. Lezin found major problems involving his client's arraignment.

"We get cases where I stand up to represent someone because they're being held in custody on an alleged crime punishable by time in jail," said Lezin. "In the case of Mr. Foster, he shouldn't have been in custody."

Lezin said the court misplaced Foster's files and proceeded as if it had jurisdiction over him, treating the case as a misdemeanor instead of an infraction. Lezin found Foster's paperwork and pointed out the drastic mistake in procedure.

Mesloh says the Public Defender's Office, courts, and District Attorney's Office are all to blame for Foster not receiving services. "All three failed to provide the follow-up that would have guaranteed effective assistance."

But Lezin doesn't think the blame should be distributed equally.

"It was a fluke Mr. Foster got services; he didn't get anything through the district attorney or the judge," Lezin said. "Neither advocated for his release to Homeless Release Project. In fact, the district attorney argued that he should stay in jail while his case was pending."

Steven Chester, interim coordinator of the Coalition on Homelessness, said that Prop. M is doing just what the mayor and its proponents promised it wouldn't: sending panhandlers to jail. "[Assistant] District Attorney Paul Henderson told me that nobody is and nobody will go to jail for long for panhandling," Henderson said. "But people are going to jail because there aren't enough services for everyone that needs them. In the case of Mr. Foster, the court didn't have the jurisdiction to hold him."

The Mayor's Office referred our questions to Trent Rhorer, director of the Department of Human Services, who hadn't responded by press time.

John Wilson, vice president of the Board of Directors of the Coalition on Homelessness and formerly homeless himself, thinks Prop. M is nothing more than unjust targeting of the homeless community. "People are being harassed, arrested, and held – it's altogether unfair treatment for any person," he said. "The services aren't always there, and Prop. M is becoming a weak excuse to pick homeless people up."

But the city hasn't been keeping information that might reveal whether cases like Foster's are common. The coalition is looking to change that, undertaking a project – led by Chester and supported by Wilson – to examine and document how many panhandlers have appeared in court and/or jail since the institution of Prop. M.

"We don't have an accurate count of people picked up under Prop. M," Wilson said. "But we need to see who's being picked up and how they're being treated."

According to the DA's Office, 15 individuals have been cited for panhandling since Feb. 1, but Foster is the only one to appear in misdemeanor court. Of those 15, it isn't clear how many have been arrested and/or taken to jail.

Lezin said the process of citing and booking panhandlers isn't fair. "It assists the district attorney in racking up citation convictions so people eventually go into custody on misdemeanors for the same alleged activities," Lezin said. "None of that does anything toward getting homeless people services."

After Lezin informed Judge Kelly and Assistant District Attorney Rebecca Prozan of the mistakes made by the court in holding Foster and treating his case as a misdemeanor, Foster was released and the Homeless Release Project assisted him in returning to court. At Foster's June 24 court appearance, Lezin said she told Prozan the court's treatment of Foster was unacceptable, and despite Prozan's last-minute effort to hold on to one of the charges, all three cases were dropped.

"The goal of [Prop. M] was ostensibly to get people services, but it's not working," Lezin said. "It's setting them up for punishment."