The good news is Thomas Kellogg is alive, living somewhere in Los Angeles County.
The bad news is that if he returns to San Diego, he'll likely be picked up by police for an outstanding warrant, issued in May 2003 after he walked away from a court-ordered alcohol-treatment facility.
As CityBeat first reported in March, Kellogg is the alcohol-dependent, chronically homeless man whose public defender, Laura Arnold, argued to a state appeals court that the justice system's continued prosecution of Kellogg violated the Eighth Amendment's ban on cruel and unusual criminal punishment.
In Kellogg's two-and-a-half-year stay on San Diego streets, he'd interfaced with police and the courts 18 times, doing several stints in jail along the way. Despite efforts by Arnold to get Kellogg help, his slew of psychological and physical ailments-including diagnosed schizophrenia, a colostomy bag and a brain injury stemming from being hit by a train-limited the types of treatment facilities and homeless shelters that would take him. Arnold argued that Kellogg's dependence on alcohol had reached a level beyond his control and that his homelessness was the consequence of years of addiction-at one point, in fact, Arnold put Kellogg up in a hotel but two days later found him wandering the street, disoriented; he had gotten lost after going out for some cigarettes.
Since a legal appeal focuses on a specific case, Arnold appealed an April 20, 2002, arrest in which Kellogg was found sitting under a bush off Highway 163, filthy and intoxicated.
On June 17, the Fourth District Court of Appeals came out with its ruling—a 2-1 judgment against Kellogg. If justices had ruled in favor of the appeal, Kellogg would have been immune to further prosecution. In their majority decision, Justices Judith Haller and Judith McConnell argued that while they are “sympathetic to Kellogg's plight,” laws against public intoxication are meant to protect citizens and the intoxicated person as well. Furthermore, they argued that the jail time Kellogg had been subjected to was “low level” and therefore did not violate his Eighth Amendment rights.
The dissenting judge, Justice Alex McDonald, argued that Kellogg's April 20 offense “was nonviolent, victimless, and posed no danger to society.” He cited a previous court ruling that found that a disease—in this case chronic alcoholism—combined with involuntary homelessness does not constitute a legal offense. “As an involuntary homeless person, Kellogg cannot avoid appearing in public. As a chronic alcoholic, he cannot stop drinking and being intoxicated. Therefore, Kellogg cannot avoid being intoxicated in a public place,” McDonald wrote in his opinion.
Arnold, in an e-mail to CityBeat, said she was disappointed by the two judges' “assertion that Tom posed a safety hazard, which was based on assumptions.” Nothing in court records suggests Kellogg was ever a danger to others, Arnold pointed out. “There is always the ‘possibility' that any intoxicated person may injure himself. However, it is well settled that a mere possibility is not sufficient to convict someone of a crime—the standard is proof beyond a reasonable doubt.”
Arnold said she plans to appeal the district court's ruling to the state Supreme Court.
David Stotland, the deputy city attorney who argued against Kellogg's appeal, said the prosecution of homeless serial inebriates like Kellogg isn't meant to result in prolonged incarceration but rather might be the best-if not only-effort to get that individual into a treatment program.
San Diego has in place the Serial Inebriate Program (SIP), a collaborative effort by the police department, city attorney's office and county courts to get repeat-offender street alcoholics into treatment. “Our whole purpose in our dealings with the drunk-in-public cases is trying to get these folks into rehabilitation programs,” Stotland said. “We're really not trying to get them locked up and we're really not trying to get them punished. We're really trying to cure the underlying problem to the extent that we can.”
But, he admitted, “the system is not perfect.”
Arnold maintains that there are no treatment programs that could have adequately addressed Kellogg's unique combination of physical and psychological ailments. At one point, his best bet was a treatment program the La Jolla VA hospital, but he was turned away after the doctors determined he couldn't benefit from their program.
Arnold said that while the case is about Kellogg, in a larger context, she hopes it draws attention to the plight of people like him. “If this case and any publicity which may ensue has the unintended result of drawing attention to the lack of adequate resources available to the most infirm and powerless individuals in our society, so much the better,” she said. “How can things change for the better unless people are aware of the problem?”