The Story of Jacobson V United States: Catching Criminals or Creating Crime?

Abstract

This book chapter, an entry in the forthcoming Criminal Law Stories, gives the background and impact of Jacobson v. United States, 503 U.S. 540 (1992), a landmark case in the revitalization of the entrapment defense. In Jacobson, the Supreme Court found that the defense of entrapment was available as a matter of law, even though the defendant had been convicted by a jury of the unsavory offense of receiving child pornography. 5 to 4, the Court was persuaded that the 26-month-long sting operation, which involved numerous mailings and letters, persuaded a person who had never before purchased unlawful child pornography do do so. Accordingly, Jacobson was not criminally liable. Jacobson has had a substantial impact. The decision provided the basis for juries to acquit based on overaggressive police tactics, and for judges - including those with hard-nosed reputations like Richard Posner and Alex Kosinski - to reverse when juries convicted where the evidence showed police encouragement overcame a defendant's initial reluctance to commit an offense. In addition, some scholars have claimed that Jacobson is the first supreme court majority opinion which expressed the slightest empathy for any homosexual.

Keywords: Entrapment, criminal law, defenses

JEL Classification: K41, K42