MR. JUSTICE HARLAN, concurring.
I am not prepared to hold that, on the present state of medical knowledge, it is completely irrational, and hence unconstitutional, for a State to conclude that narcotics addiction is something other than an illness, nor that it amounts to cruel and unusual punishment for the State to subject narcotics addicts to its criminal law. Insofar as addiction may be identified with the use or possession of narcotics within the State (or, I would suppose, without the State), in violation of local statutes prohibiting such acts, it may surely be reached by the State's criminal law. But in this case, the trial court's instructions permitted the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics. [*] Since addiction alone cannot [p679] reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.
If the California statute reaches this type of conduct, and, for present purposes, we must accept the trial court's construction as binding, Terminiello v. Chicago, 337 U.S. 1, 4, it is an arbitrary imposition which exceeds the power that a State may exercise in enacting its criminal law. Accordingly, I agree that the application of the California statute was unconstitutional in this case. and join the judgment of reversal.
Note edit
- The jury was instructed that
- it is not incumbent upon the People to prove the unlawfulness of defendant's use of narcotics. All that the People must show is either that the defendant did use a narcotic in Los Angeles County or that, while in the City of Los Angeles, he was addicted to the use of narcotics.
(Emphasis added.) Although the jury was told that it should acquit if the appellant proved that his
- being addicted to the use of narcotics was administered [sic] by or under the direction of a person licensed by the State of California to prescribe and administer narcotics,
this part of the instruction did not cover other possible lawful uses which could have produced the appellant's addiction.