The Story of Jacobson V United States: Catching Criminals or Creating Crime?
CRIMINAL LAW STORIES, Robert Weisberg, ed., Foundation Press, Forthcoming
30 Pages Posted: 20 May 2005 Last revised: 2 Nov 2012
Date Written: November 1, 2012
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
Suggested Citation: Suggested Citation