Thomas Kellogg's first two and a half years in San Diego can be traced through 18 different case files housed in the county Superior Court records office.
Judging strictly from the files, the Massachusetts native, now 46, showed up in San Diego sometime before March of 2001—that's when he was first arraigned on a misdemeanor charge of public intoxication. He spent three days in jail and was released after he paid a $150 fine and promised not to appear drunk in public again. That promise lasted less than a month.
Kellogg was—and likely still is—homeless and chronically addicted to alcohol. With no place to drink but in public, between March and September of 2001 alone he was arrested nine times. In 2002 he was prosecuted five times for public inebriation, and three times in 2003. Last Aug. 25 he failed to show for a court date and hasn't been seen since.
On March 8, deputy public defender Laura Arnold, who represented Kellogg almost two years ago, argued in state appeals court that continued prosecution of her former client violated the Eighth Amendment's ban on cruel and unusual punishment. “[Kellogg's] homelessness is not a choice; it is a product of his illness,” she argued in a court document. “He drinks to the point of intoxication because he is physically and psychologically dependent on alcohol. He appears in public when intoxicated not because he wants to be exposed to ridicule and subject to arrest, but because he cannot function well enough to care for himself.”
Arnold is seeking to have a judge overturn Kellogg's April 20, 2002 conviction—only one in a string, and one for which he already served jail time. She argued that prosecuting people like Kellogg—homeless by circumstance, dependent on alcohol and, in many cases, resistant to treatment-is the equivalent of punishing someone for a disease over which they have no control. In the April 20 matter, Kellogg had been found by police three months earlier hiding under a bush near the Robinson Street off-ramp of the 163 Freeway in Hillcrest.
“Under the Eighth Amendment [if the choice is] leave him in jail or under a bush, the only alternative is to leave him under a bush,” Arnold told the court Monday. Jails, Arnold argued in her court brief, are not equipped to meet the needs of dually diagnosed people—mentally ill substance abusers—like Kellogg who, upon release, lack the counseling, support and wherewithal necessary to stay sober.
According to court records, Kellogg started drinking when he was 7 years old. At some point later in his life, a doctor—Arnold doesn't know when or where—put Kellogg on Klonopin, a highly addictive anti-seizure medication, the side affects of which can resemble acute intoxication. Kellogg also had a prescription for Vicodin to combat persistent nerve pain. He had also been diagnosed as having schizoid personality disorder. His mental illness, alcoholism and drug addiction were compounded by a brain injury he suffered after being hit by a train in Florida, leaving him with significant cognitive impairment. To top it off, he relied on a colostomy bag to empty his bowels.
By all indications, this amalgam of physical and psychological problems made Kellogg a poor fit for most treatment programs and homeless shelters. By all indications, he simply wanted to be left alone. Gregg Michel, a clinical psychologist who reviewed Kellogg's case, reached this conclusion: “I think that he's an above-average person intellectually, or was—and yet, if I were to score, actually score the intelligence test I gave him, it would be below the first percentile, what we call the mentally retarded area.
“I wouldn't expect a mentally retarded person to be able to [complete treatment] and you wouldn't expect this patient [Kellogg] to do it either.”
On Jan. 10, 2002, police found Kellogg in the bushes near the Robinson Street exit. He was described as incoherent and unresponsive but admitted he had consumed a fifth of vodka. He was arrested for public intoxication-his first arrest of 2002.
Attorney Arnold, then 34, was assigned his case and during the next few months became attached to Kellogg unlike any other person she had defended. “I wanted to save him,” she admitted. “I felt like I cared about him more than he cared about himself.”
Arnold tried and ultimately failed to get her client off the street, even going so far as renting him a room at a downtown residential hotel. She took him to Fantastic Sam's in Hillcrest for a haircut and bought him new shoes and a jacket, hoping that if he cleaned up, he'd have a better chance of getting into a treatment program.
She got him a room at the Westpark Inn on Fourth Avenue and stocked him with necessities. “I bought him shampoo and conditioner and lotion because he's got severe skin problems,” she recalled. “He washed his hair and put the lotion in his hair. I'm like, ‘What happened to you?' and he said ‘I used the conditioner.'”
It was Friday when Kellogg checked into the hotel. “It was a lovely room; they were so nice there,” said Arnold. “Then Monday I came to work and he's sleeping on the street in front of my office and he's filthy. I'm like, ‘Tom what happened?'”
Kellogg told her he had left the hotel to buy a pack of cigarettes, got lost and couldn't find his way back.
Arnold's goal was to get Kellogg into a treatment program at the veterans hospital in La Jolla in order to keep him out of jail. The program ultimately rejected him, she said, because his brain injury rendered him, as one doctor put it, “gravely disabled.”
“They didn't think he could benefit from a residential program,” Arnold said.
There should, however, be a treatment program in San Diego that would benefit Kellogg. This county was one of the first to launch a program that offers folks like Kellogg treatment in lieu of jail time. San Diego Police officer John Liening, one of the founders of the Serial Inebriate Program (SIP), is familiar with Kellogg and said he believes there's likely a program out there for him; it's just a matter of finding the right one. (Arnold, in a statement to the court, said Kellogg had pretty much exhausted his options.) There's currently a warrant out for Kellogg's arrest because he walked away from an SIP treatment facility in May.
“We had him in a program,” Liening said, “and he was doing pretty good for awhile—he was doing OK for him. The program would call us up every now and then and he'd locked himself in a room. He was doing as good as he could do there, and then he walked away.”
Joan Dawson, who heads the city attorney's Neighborhood Prosecution Unit, agreed: “Significant resources [were] dedicated to [Kellogg]. He's been in multiple programs.”
Like Arnold, Liening wonders about Kellogg's current whereabouts. “I fear the worst because the last time I saw Tom he was victimized on the street, again. Somebody smashed in his head with a rock and took his money. He was in the emergency room, and they weren't sure if he was going to survive.”
Jail isn't the worst place for people like Kellogg, Liening argued. “Jail, to me, is a safe environment.... When they're on the street, they're being victimized and they're not eating; they're exposed to all the elements and they're not taking their medication. When they're in jail they're safe.... They're eating, they're getting the medication they need and they're not drinking.
“It's kind of how you look at it,” he added.
If the panel of three district court judges rules in favor of Kellogg's appeal, not only will his April 2002 conviction be overturned, if he reemerges and is found to be drunk in public, he'd arguably be immune from prosecution. A favorable ruling would also set a precedent that could impact other cases; a judge would have to find, however, that the individual is homeless and alcohol-dependent by circumstance and not by choice.
On Monday the appellate panel quizzed Arnold on whether it could be considered cruel and unusual punishment for police to have left Kellogg under the bush off the 163; why his $800 a month disability check couldn't afford him a place to live; where to draw the line between drunk-in-public and being a danger to himself or others. What it came down to, however, is whether there's a third viable alternative to leaving people like Kellogg alone or throwing them in jail. Jail is meant to be a deterrent to crime and, as Justice Alex McDonald pointed out, “If you don't have a choice, [jail] couldn't be a deterrent.”
In the larger scheme, Arnold wants social services, not the criminal-justice system, to look after people like her client. Poor funding and looming budget cuts makes that more wishful thinking than anything else. As Arnold argued to the court, her client's public intoxication “is the product of a society which lacks the resources to adequately care for its sickest and most powerless citizens. This should not be a basis for criminal prosecution or prolonged incarceration.”