Jailing Homeless, Chronic Alcoholic Not Cruel, Court Finds

By Lookout Staff

June 23 – In a decision that could have wide ranging implications, a state appeals court ruled last week that jailing a homeless alcoholic for being drunk in public is not cruel and unusual punishment.

The divided 4th District Court of Appeal in San Diego rejected Vietnam veteran Thomas Kellogg's claim that it impossible for him to avoid being intoxicated in public due his medical condition.

In a 2 to 1 decision, the court last Thursday agreed with the Superior Court judge who sentenced Kellogg to 180 days in jail two years ago for public intoxication.

"The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk," Justice Judith L. Haller wrote in the majority opinion.

"Although criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg's position, the Legislature's policy choice to retain the misdemeanor offense of public intoxication to provide for the public welfare does not rise to the level of cruel and/or unusual punishment even as applied to a homeless, chronic alcoholic," Haller said.

In a dissenting opinion, Justice Alex C. McDonald argued that there was no evidence Kellogg posed a threat to either his or the public's safety, a requirement under the Penal Code section.

"Because a person who is involuntarily homeless cannot avoid appearing in public, that person should not be criminally liable for acts (e.g., such as being intoxicated) that, if done in private by others, are not considered criminal acts," McDonald wrote.

"Furthermore, because an involuntarily homeless person could not be criminally liable for eating and becoming satiated in public, that person should not be criminally liable for drinking and being intoxicated in public."

Kellogg’s attorney had argued on appeal that the sentence violates the U.S. and California constitutions and "shocks the conscience and offends fundamental notions of human dignity."

Deputy Public Defender Laura B. Arnold, who represented Kellogg, said she would seek review from the State Supreme Court.

Kellogg was arrested by an officer from San Diego’s homeless outreach team in January 2002 after the disheveled and incoherent veteran was found sitting under a bush on a highway embankment.

Kellogg was released after posting a $104 bail from his disability income, but he was arrested two more times in February for public intoxication.

Experts at a hearing to dismiss the charges argued that Kellogg was homeless as a result of his medical condition and not out of choice.

One expert testified that Kellogg was "gravely disabled and incapable of providing for his basic needs and that his degree of dysfunction was life threatening," according to the opinion.