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 Classifications: K41, K42

Accepted Paper Series