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
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
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
The US Supreme Court
overturned the conviction.
The US Supreme Court found
that the government did not prove that Jacobson was predisposed to break
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
For example, people who
smoke dope on vacation in Amsterdam don't come back to the US and do it
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.