Metropolitan News-Enterprise


Friday, June 18, 2004


Page 1


C.A.: Homeless Alcoholic May Be Punished for Public Intoxication

Divided Panel Rejects Claim Penalty is Cruel and Unusual for ‘Gravely Disabled’ Addict


By DAVID WATSON, Staff Writer


An involuntarily homeless chronic alcoholic may be convicted of public intoxication without offending the constitutional prohibition against cruel and unusual punishment, the Fourth District Court of Appeal ruled yesterday.

Justice Judith L. Haller of Div. One, joined by Presiding Justice Judith McConnell, rejected Thomas Kellogg’s contention that his status made it impossible for him to avoid violating the law.

 “The public intoxication statute, Penal Code section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way,” Haller declared. “The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk.”

She added:

“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.”

Powell Case Cited

Justice Alex C. McDonald dissented, citing Powell v. Texas (1968) 392 U.S. 514. Though the court in Powell affirmed the conviction of a chronic alcoholic on a public intoxication charge, McDonald noted, it did so without a majority opinion.

McDonald said the concurring opinion authored by Justice Byron White in Powell “strongly suggests that he would have joined the four dissenting justices had the record in that case shown the defendant was a chronic alcoholic who was not homeless by choice and therefore could not have done his drinking in private or avoid being in public while intoxicated.”

The Supreme Court has not addressed the issue since 1968, McDonald observed, adding that the question of applying such a statute to an involuntarily homeless defendant “appears to be one of first impression in the state and federal appellate courts.”

He commented:

“Although Justice White’s discussion in his concurring opinion regarding homelessness is not binding on this court, I nevertheless am persuaded by his reasoning and agree with his proposed result in circumstances involving chronic alcoholics who are involuntarily homeless.”

The record in the case was “devoid of evidence” suggesting that Kellogg was unable to care for his own or others’ safety or was obstructing anything, the dissenting jurist asserted.

“The record shows only that Kellogg was sitting under a bush on a highway embankment,” McDonald wrote. “That evidence is insufficient to support a finding he was actually interfering with or obstructing that highway or was unable to care for his or others’ safety. The majority opinion permits the mere potential or possibility that Kellogg would interfere with or obstruct that highway or become unable to care for his or others’ safety to be sufficient for a section 647, subdivision (f) conviction, which is therefore a conviction for simply being homeless and intoxicated in public.”

Hearing Testimony

Psychologists at a hearing on Kellogg’s motion to dismiss testified he suffered from dementia, long-term cognitive impairment, schizoid personality disorder, and symptoms of posttraumatic stress disorder in addition to his chronic alcoholism. They explained he wears a colostomy bag, may be addicted to medication, and was gravely disabled and incapable of providing for his basic needs.

Even granting that Kellogg had established his homelessness was not a matter of choice, Haller said, she was “not persuaded” that White would have sided with the Powell dissenters if the defendant in that case had been similarly situated.

“The state has a legitimate need to control public drunkenness when it creates a safety hazard,” she opined. “It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets, and other such public areas where they could be trampled upon, tripped over, or run over by cars. The facts of Kellogg’s public intoxication in the instant case show a clear potential for such harm. He was found sitting in bushes on a freeway embankment in an inebriated state. It is not difficult to imagine the serious possibility of danger to himself or others had he wandered off the embankment onto the freeway.”

She noted that the California Supreme Court, in Sundance v. Municipal Court (1986) 42 Cal.3d 1101, rejected a bid to civilly enjoin enforcement of Sec. 647(f) based on the same argument advanced by Kellogg, and that that statute provides for only “low level” criminal sanctions.

“Based on the guidance provided in Powell and Sundance,” she explained, “we conclude that the California Legislature’s decision to allow misdemeanor culpability for public intoxication, even as applied to a homeless, chronic alcoholic such as Kellogg, is neither disproportionate to the offense nor inhumane.”

The justice went on to say:

“We are sympathetic to Kellogg’s plight; however, we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies. It may be true that the safety concerns arising from public intoxication can be addressed by means of civil custody rather than penal sanctions....However, the Legislature has not seen fit to remove the option of criminal prosecution and conviction. Absent a constitutional violation, it is not our role to second-guess this policy determination.”

The case is People v. Kellogg, D042696.


Copyright 2004, Metropolitan News Company