Jacobson v. United States
503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed.2d 174 (1992)

  • Jacobson had once ordered some magazines that could be considered child pornography from a mail order store, prior to the enactment of the Child Protection Act of 1984, which made that sort of thing illegal.
  • Postal Service inspectors, in an attempt to crack down on the now illegal child pornography business, began sending unsolicited mail to people like Jacobson, claiming to be from a non-profit lobbying organization seeking to overturn the law. This led to numerous letters back and forth between Jacobson and the inspectors in which he talked about his sexual proclivities.
    • Jacobson believed he was corresponding with members of a lobbying organization.
    • Some of the solicitations suggested that Jacobson should order some magazines as a method of social protest.
  • After two years of this, they sent Jacobson a catalog of dirty magazines for sale, including some that purported to contain illegal images. Jacobson ordered one, and the police came and arrested him.
    • Jacobson only had what the government had sent him. No other dirty magazines were found.
  • The Trial Court convicted Jacobson of receiving child pornography. He appealed.
    • Jacobson argued the defense of entrapment.
  • The Appellate Court overturned the conviction. The prosecutor appealed.
    • The Appellate Court found that the government had insufficient grounds to believe that Jacobson was likely to purchase the material it was offering to him.
  • The Appellate Court en banc reversed and upheld the conviction. Jacobson appealed.
    • The Appellate Court found that the postal investigators had merely provided Jacobson with opportunities to purchase child pornography and not sought to affect his predisposition.
      • Under the subjective approach to defining entrapment, “where a person already has the willingness to break the law, the mere fact that the government agent provides what appears to be a favorable opportunity is not entrapment.”
  • The US Supreme Court overturned the conviction.
    • The US Supreme Court found that the government did not prove that Jacobson was predisposed to break the law.
      • “Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it.”
        • For example, people who smoke dope on vacation in Amsterdam don’t come back to the US and do it illegally.
      • “Law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.”
        • Would the common market have spent over two years trying to convince Jacobson to buy their product?
  • In a dissent, it was argued that the police didn’t do anything beyond what pornographers all do. They did not provide any incentive beyond what is already available.
    • Jacobson never said ‘no’ to any offers and actively corresponded. He took affirmative steps to foster the relationship. That implies predisposition.