Jacobson v. United States
Encyclopedia
Jacobson v. United States, 503 U.S. 540
(1992), is a case decided by the United States Supreme Court
regarding the criminal procedure
topic of entrapment
. A narrowly divided court overturned the conviction of a Nebraska
man for receiving child pornography
through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.
It was the first time the court had considered an entrapment case from outside the realm of controlled-substance enforcement, or one involving conduct that had only recently been criminalized. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court appeared to have finally resolved a lingering issue in its previous decisions on the subject.
The decision was seen as a rare triumph for defendants before a conservative court that frequently sided with prosecutors. Guidelines for federal law enforcement agents were changed in its wake, and it was described as having brought entrapment "back from the dead."
, and it was readily available to those who sought it. While most was imported from European countries where it was produced in large quantities, there was also a domestic industry.
Media exposés and popular outrage led Congress to pass by unanimous vote the Sexual Exploitation of Children Act of 1977, which criminalized the production and sale of child porn. This act was signed into law by President Jimmy Carter
on 1978-02-06. The legislation was supported by a unanimous decision of the Supreme Court in New York v. Ferber
, that images of children need not meet legal definitions of obscenity
to be prohibited by the government, since the state's interest in protecting children from harm
trumped First Amendment rights in this instance.
Shortly thereafter, an update to the SEOC Act, the Child Protection Act of 1984, made it illegal to purchase pornographic materials depicting minors through the mail, or possess them, on the grounds that it encouraged child sexual abuse
. While popular with voters, civil libertarians warned that the expanded scope of these laws could result in prosecutions of entirely innocent people who had little or nothing to do with the child-porn industry, such as parents taking photos
or videos of their children in the nude. Nevertheless, investigators forged ahead and had, by the mid-1980s, shut down almost all domestic child-porn production. The government itself was the biggest marketer, in the form of materials it created to tempt buyers.
(USPS) in the Great Plains
states began "Project Looking Glass", a sting operation
under the newly-enacted Child Protection Act of 1984, which made it illegal to send pictures of nude minors through the mail for noncommercial purposes (previously, only those who intended to resell them could be prosecuted). Ray Mack, the inspector in charge, meant it to be primarily an intelligence
-gathering operation, a way to keep tabs on producers and distributors. It sent mail to those it had known to have ordered such materials while they were legal. Among them were Keith Jacobson, a never-married
56-year-old U.S. Army
retiree
turned farmer
living with his elderly parents in Newman Grove
, Nebraska
, who would later describe himself as bisexual
although he said he had never had relations with men. Jacobson had, the previous year, ordered two magazines entitled Bare Boys I and Bare Boys II from Electric Moon, an adult bookstore
in San Diego, California
, that had been raided and shut down.
USPS investigators decided to send him a letter from a fictitious organization, the "American Hedonist
Society", which supposedly sought to lobby for "the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan
morality
." Included was a questionnaire
attempting to gauge the respondent's interest in various paraphilias, including pedophilia
and ephebophilia
. Jacobson indicated an "above average" interest in the latter, especially between males, but also stated he was opposed to the former. The USPS decided he was not a promising target and left him alone.
But some time later, Calvin Comfort, a "prohibited mailing specialist" for the region, found Jacobson's name in another file, and the government decided to try again, this time as part of an operation aimed at purchasers. In May 1986, they sent him mail from another fictitious organization, "Midlands Data Research", which was for those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age". Jacobson confessed to them that he was "interested in teenage sexuality", asked for more information and that his name be kept confidential. This led to Jacobson getting mail from the "Heartland Institute for a New Tomorrow" (HINT), "an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process." Jacobson seemed to sympathize, writing in response that sexual freedom and freedom of the press were under attack by "right-wing fundamentalists
".
Along with a thank-you note from "Jean Daniels" of HINT also came a supposed list of others in the area with similar interests as possible pen pal
s. But Jacobson never wrote any of them. So Comfort, under the pseudonym
"Carl Long", wrote back using a technique called "mirroring", claiming to be equally interested in depictions of sex acts between young boys. Jacobson said he, too, liked "good looking young guys (in their late teens and early 20's) doing their thing together". Neither Jacobson nor Long made any more explicit reference to pornographic materials and Jacobson stopped writing back after two letters. With no evidence that he had ever watched or possessed any child pornography, the USPS again dropped its efforts against him.
Those were renewed in March 1987 when the United States Customs Service
sent similar exploratory material, supposedly from Canada, to Jacobson and others on the USPS's list, and he responded, placing an order that was never filled. A catalog from a "Far Eastern Trading Company" was sent instead, along with other written material bemoaning the infringement of sexual freedoms. This time Jacobson ordered a publication called Boys Who Love Boys, which the catalog said featured "11 and 14 year old boys" who "get it on in every way imaginable. Oral
, anal
and heavy masturbation
. If you love boys," it further read, "you will be delighted with this".
On June 16, 1987, Jacobson received a card in his mail telling him to go to the post office
and pick up the envelope that supposedly contained Boys Who Love Boys. Comfort observed him doing so and got a search warrant
for his home on that basis. He was arrested shortly thereafter, 26 months after the postal inspectors had first contacted him.
on one count of knowingly receiving through the mails sexually explicit material depicting a minor in September. At trial in federal court
, his attorney, George H. Moyer, noted his exemplary military service record, including a Bronze Star
, service in Korea
and Vietnam War
and lack of a civilian criminal record beyond a drunken-driving
conviction in 1958. He raised the entrapment defense.
Jacobson testified
that he had been "shocked and surprised" by the contents of the Bare Boys collections when he received them, as he had not expected the photos to depict very young boys: "I thought these were a nudist
type publication. Many of the pictures were out in a rural or outdoor setting. There was - I didn't draw any sexual connotation or connection with that".
The jury convicted him in April 1988. He was sentenced to three years imprisonment
, suspended
to two years' probation
and 250 hours of community service
, which he discharged by painting a school bus
and working at a library
. He had to sell his share of the family farm to his sister to pay his legal bills, and was fired from his job driving a school bus in Newman Grove even though there was no evidence he had ever approached children sexually. He lowered his profile, often driving to more distant communities to run routine errands. Nonetheless, his hometown supported him. "Any of us could be caught up in such a sting," the Newman Grove local newspaper editorialized.
. On January 12, 1990, Senior Judge Gerald Heaney and Chief Judge Donald Lay overturned the conviction on the grounds that the government had insufficient grounds to believe that Jacobson was likely to purchase the material it was offering to him. Judge George G. Fagg said in dissent that his colleagues had "declared war on the government's power to initiate undercover
investigations" and that reasonable suspicion need not be present for such operations to take place.
He would carry the day after federal prosecutors appealed for an en banc
rehearing, reiterating that point for an eight-judge majority and saying that unless Jacobson could demonstrate that a specifically protected right had been violated by the investigation, the conviction would stand. The majority also rejected the entrapment defense, arguing that the postal investigators had merely provided Jacobson with opportunities to purchase child pornography and not sought to affect his predisposition (an important element in entrapment under U.S. law) to do so in any way.
Lay and Heaney were the sole dissenters, both filing separate opinions. The former argued that since Jacobson had not shown any predisposition toward breaking the law throughout his life as his Bare Boys purchases had been legal at the time, he was entrapped. The latter stuck to the panel opinion, arguing that the government had no reasonable belief that Jacobson would purchase child pornography. He also called investigative tactics sufficiently outrageous to justify reversal: "In my view, the government's investigation and prosecution of Jacobson amount to the deliberate manufacture of a crime that would never have occurred but for the Postal Service's overzealous efforts to create it".
supposedly picked Jacobson's case out of a pile of "hopeless" certiorari
petitions. After reading it, Justice Byron White
made an argument moving and persuasive enough that Justices Harry Blackmun
, Thurgood Marshall
, and Stevens changed their minds and agreed to accept it. Arguments before the High Court, however, were limited by the grant to the question of whether Jacobson had been entrapped as a matter of law.
1915)), and the Supreme Court followed suit in Sorrells v. United States
.
The Sorrells court grounded the entrapment defense in what has since been called the "subjective" test, in which the prosecution must overcome it by showing the defendant had a predisposition to commit the crime in any event. Felix Frankfurter
, in a partial dissent, had argued instead for an "objective" standard, which focuses instead on the conduct of the law enforcement personnel involved and whether the crime would have occurred without their involvement, a call repeated by other justices in later decisions. While the majority of states have chosen to use the objective method, the Supreme Court has held firm to the former.
supported him, worried over what they saw as dangerous growth in government police powers during the Reagan
and Bush administrations, when law enforcement cracked down on drugs as well as pornography distribution at the behest of the Religious Right
. Operation Looking Glass, the USPS claimed, had netted 147 convictions, but only 35 where evidence was found that the offenders had either been involved in producing child pornography or molested children
. Critics claimed that the government was exaggerating the child-porn problem at best and contributing to it at worst, possibly by introducing some consumers to material they might never have developed a taste for otherwise.
It was the subject of a 60 Minutes
segment, in which Jacobson told Mike Wallace
, after pausing for several seconds and looking downward, that he broke down and ordered Boys Who Love Boys because he wanted to see just what it was that he was being so heavily solicited to buy. A postal inspector also admitted to the show that since it had successfully put most child-porn producers out of business, it was now going after consumers with material of its own.
Interested parties on both sides filed amici
. A group of conservative
Republicans
in both houses of Congress, including Newt Gingrich
, Dick Armey, Henry Hyde
and Rick Santorum
, and the National Center for Missing and Exploited Children
both argued for affirming the conviction, pointing to the invaluable nature of undercover investigations in fighting child pornography, worrying that requiring reasonable suspicion beforehand could make such operations impossible. Americans for Effective Law Enforcement said there had been no entrapment and that reasonable suspicion was not required before starting investigations such as Looking Glass. The American Civil Liberties Union
, its Nebraska chapter and the National Association of Criminal Defense Lawyers
weighed in on Jacobson's behalf.
and at oral argument, he said that a mere stated interest in sex among young men did not rise to a level of proving predisposition, that the government should have had evidence in hand that Jacobson was actually willing to break the law to do so. (Kenneth Starr
, then Solicitor General
, had maintained in the government's brief opposing certiorari that his prior purchase of the Bare Boys magazines was all the proof it needed, even if the action were legal at the time.) Pressed on other undercover investigative techniques, he admitted that a government-run pawn shop would be a permissible way to apprehend thieves despite a lack of evidence of predisposition because the crimes might well have occurred prior to any contact with the government or its operatives.
During oral argument, Justice Antonin Scalia
responded to this by suggesting that some interests a person might express, such as recreational drugs, signified a willingness to violate social norms regardless of whether the conduct was illegal or not. Paul Larkin, who appeared for the government, had to admit to that there was no case law on entrapment where something that had previously been permitted was now prohibited. At one point, trying to argue that Jacobson did not have access to the defense of entrapment by estoppel
(where the government persuades an actor that it is legal to do something, only to prosecute them for it), Scalia told Larkin he'd lost him.
, who had replaced Marshall, changed their minds. It has been suggested that Thomas, who later established a reputation for allowing wide latitude to law enforcement similar to other contemporary Republican appointees, was especially sensitive at that time to Jacobson's situation due to the sexual harassment
allegations raised by Anita Hill
during his own recent confirmation hearings.
Justice David Souter
later provided the swing vote, and opinions that White and Sandra Day O'Connor
had already begun drafting had to be rewritten to reflect the changed outcome of the case.
Since the Bare Boys purchases were legal at the time, they did not prove that he was willing to break the law to acquire such materials. "... (E)vidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition", he wrote. "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". He also noted that, at trial, the prosecution had not challenged Jacobson's assertion that he did not know the magazines would contain pictures of minors until he received it.
Furthermore, he suggested, the appeals to political action he received may have given him reasons other than prurient interest to order the material, indeed even suggested he had a duty to order them as a way of taking a stand:
White also dismissed the notion that his responses to the surveys he was sent proved he was willing to order child porn illegally, saying they only indicated "a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations ... petitioner's responses hardly support an inference that he would commit the crime of receiving child pornography through the mails". He noted that twice before the Court had suggested that an individual's private fantasies are not the government's business, even if it has a strong interest in proscribing the enactment of those fantasies.
"When the Government's quest for convictions", he concluded, "leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."
She began by stating what was, to the minority, the most relevant aspect of the case.
She noted also that Jacobson had written, in a note included with his order, that he would be doing more business with the company later and that he wanted to "(b)e discreet in order to protect you and me".
The majority, she said, had so greatly expanded the government's burden of proof in undercover sting operations as to make future such investigations untenable:
She scoffed at White's claim that the calls to activism were possibly instrumental in creating a predisposition to offend: "The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away ... Nor did the Government claim to be organizing a civil disobedience movement, which would protest the pornography laws by breaking them." It was up to the jury, she said, to decide what Jacobson meant when he said on the stand that he wanted to see "what all the trouble and hysteria was about", and they had done so.
In Part II, she accused her colleagues of redefining predisposition so that it had to include an awareness that the action to be undertaken was illegal, despite the fact that the CPA did not include specific intent to receive child pornography as an element of the crime. "The elements of predisposition," she said, "should track the elements of the crime". The Bare Boys purchases were not, she argued, as dispositive of that as the majority claimed. Her last sentences responded to White's, saying that there was no question that the jury had been properly instructed
on entrapment law and thus, their decision that Jacobson could not claim entrapment should be allowed to stand.
reporter Linda Greenhouse
described the verdict as "an anomaly, an extreme misuse of Government power in which an innocent person was led to commit a manufactured crime" and thus not likely to signal a shift back in favor of defendants after a period that had seen a move away from the liberalism of the Warren and Burger Courts towards a more law-and-order
–oriented Court. Editorial
ists at newspapers around the country — the Times, the Chicago Tribune
, and the Washington Post — praised the court's decision, as did Jacobson's hometown paper, the Omaha World-Herald
. Columnists on both sides of the political spectrum, from Clarence Page
to William Safire
joined in celebrating his turn of fate and criticizing the excessive zeal of the postal inspectors. Civil libertarians savored what they felt was an overdue triumph against the overreach of law enforcement during the preceding decade. "... (W)hen the State gets
behind a moral panic, no one is safe," wrote Bob Chatelle of the political issues committee of the American Writers' Union, pointing to other zealous prosecutions of people with no demonstrable interest in child pornography who had nevertheless fallen afoul of newer laws by taking or possessing pictures of naked children with no apparent sexual content.
Others pointed to what they called the horrific cost of Project Looking Glass. Among its other targets had been another middle-aged Nebraska farmer, Bob Brase, of Shelby
. Like Jacobson, his name had been on the mailing list of a porn distributor, and despite neither having a criminal record nor any interest in child porn he was relentlessly solicited, including letters from the same "Carl Long". Finally he ordered a videotape
and was arrested and indicted. No other prohibited material was found in his house, either.
Just before he was to be arraigned
, he drove into a field and shot
himself, leaving behind a wife and two children. His was one of four suicide
s by Looking Glass targets. Critics wondered if these suicides, which investigators had said they expected, were worth it. In 1999, Comfort also took his own life, citing despondency over the stresses of his job.
had used similar language a year before, writing in an opinion that it had "breathed new life" into the defense. Most significantly, he said, appeals courts were now considering it in cases where the defendant had seemed willing to commit the crime, examining predisposition closely in cases where they would have previously rejected it out of hand.
Despite vows by prosecutors and heads of federal law enforcement agencies that the decision would not change the way they did undercover operations, there were some noticeable, at least at the federal level. Later versions of the Attorney General's Guidelines on FBI Undercover Operations, widely emulated by other federal agencies, show some changes in language from those published before Jacobson. "Entrapment should be avoided", became "entrapment must be avoided", and investigators were told it must be apparent to them that the activity they were investigating was illegal, rather than just corrupt. A definition of entrapment was included that used the same language as the decision.
Authors Joyce Murdoch and Deb Pryce say another effect of the case was a softening of the Court's attitude towards the gay community
. Jacobson was the first such person to come before the Court to receive even the slightest empathy
from it, and even a few years earlier his case might have been doomed from the start on that basis alone.
has led to operations where investigators pose as minors of either sex in chat room
s, trying to entice online predator
s to come meet them in person and have sex. When they do, they are arrested. These operations have become popular viewing on Dateline NBC
s "To Catch A Predator
" segments and other television shows.
Most such operations are over very quickly and result in guilty pleas, but entrapment is sometimes alleged, and a protracted investigation of a Florida
man led to the first Internet entrapment case to be considered at the appellate level. Writing for a Ninth Circuit majority (the arrest occurred in California) in Poehlman v United States, (217 F3d 692 (9th Cir 2000)), Judge Alex Kozinski
reversed the conviction, saying the defendant had met the Jacobson standard and shown that the idea of crossing state lines to have sex with a minor had been implanted only after extensive email
correspondence with an undercover FBI agent.
But beyond that, it makes no effort to address the subjective vs. objective question, nor does its discussion of intent delve into the matter of specific vs. general intent. Some appeals courts, however, have developed more specific entrapment tests on their own.
University of Arizona
law
professor
Gabriel J. Chin points out that the entire federal entrapment defense rests on statutory construction, which allows for the possibility that Congress could simply repeal or modify it so that operations implanting suggestion of criminal activity such as the one that ensnared Jacobson were specifically authorized by law. Since the majority had shown such distaste for it, how, he wondered, would it rule on the constitutionality of such a law if it were to be challenged?
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1992), is a case decided by the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
regarding the criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
topic of entrapment
Entrapment
In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment is a possible defense against criminal liability...
. A narrowly divided court overturned the conviction of a Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
man for receiving child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
through the mail, ruling that postal inspectors had implanted a desire to do so through repeated written entreaties.
It was the first time the court had considered an entrapment case from outside the realm of controlled-substance enforcement, or one involving conduct that had only recently been criminalized. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court appeared to have finally resolved a lingering issue in its previous decisions on the subject.
The decision was seen as a rare triumph for defendants before a conservative court that frequently sided with prosecutors. Guidelines for federal law enforcement agents were changed in its wake, and it was described as having brought entrapment "back from the dead."
U.S. anti-child pornography legislation and early cases
Until the late 1970s, there were no laws specifically addressing the production, distribution or possession of child pornographyChild pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
, and it was readily available to those who sought it. While most was imported from European countries where it was produced in large quantities, there was also a domestic industry.
Media exposés and popular outrage led Congress to pass by unanimous vote the Sexual Exploitation of Children Act of 1977, which criminalized the production and sale of child porn. This act was signed into law by President Jimmy Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
on 1978-02-06. The legislation was supported by a unanimous decision of the Supreme Court in New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....
, that images of children need not meet legal definitions of obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
to be prohibited by the government, since the state's interest in protecting children from harm
Child welfare
Child protection is used to describe a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability...
trumped First Amendment rights in this instance.
Shortly thereafter, an update to the SEOC Act, the Child Protection Act of 1984, made it illegal to purchase pornographic materials depicting minors through the mail, or possess them, on the grounds that it encouraged child sexual abuse
Child sexual abuse
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
. While popular with voters, civil libertarians warned that the expanded scope of these laws could result in prosecutions of entirely innocent people who had little or nothing to do with the child-porn industry, such as parents taking photos
Photography
Photography is the art, science and practice of creating durable images by recording light or other electromagnetic radiation, either electronically by means of an image sensor or chemically by means of a light-sensitive material such as photographic film...
or videos of their children in the nude. Nevertheless, investigators forged ahead and had, by the mid-1980s, shut down almost all domestic child-porn production. The government itself was the biggest marketer, in the form of materials it created to tempt buyers.
Investigation and arrest of Keith Jacobson
In January 1985 inspectors for the United States Postal ServiceUnited States Postal Service
The United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
(USPS) in the Great Plains
Great Plains
The Great Plains are a broad expanse of flat land, much of it covered in prairie, steppe and grassland, which lies west of the Mississippi River and east of the Rocky Mountains in the United States and Canada. This area covers parts of the U.S...
states began "Project Looking Glass", a sting operation
Sting operation
In law enforcement, a sting operation is a deceptive operation designed to catch a person committing a crime. A typical sting will have a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather...
under the newly-enacted Child Protection Act of 1984, which made it illegal to send pictures of nude minors through the mail for noncommercial purposes (previously, only those who intended to resell them could be prosecuted). Ray Mack, the inspector in charge, meant it to be primarily an intelligence
Intelligence
Intelligence has been defined in different ways, including the abilities for abstract thought, understanding, communication, reasoning, learning, planning, emotional intelligence and problem solving....
-gathering operation, a way to keep tabs on producers and distributors. It sent mail to those it had known to have ordered such materials while they were legal. Among them were Keith Jacobson, a never-married
Bachelor
A bachelor is a man above the age of majority who has never been married . Unlike his female counterpart, the spinster, a bachelor may have had children...
56-year-old U.S. Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
retiree
Retirement
Retirement is the point where a person stops employment completely. A person may also semi-retire by reducing work hours.Many people choose to retire when they are eligible for private or public pension benefits, although some are forced to retire when physical conditions don't allow the person to...
turned farmer
Farmer
A farmer is a person engaged in agriculture, who raises living organisms for food or raw materials, generally including livestock husbandry and growing crops, such as produce and grain...
living with his elderly parents in Newman Grove
Newman Grove, Nebraska
Newman Grove is a city in Madison and Platte Counties in the U.S. state of Nebraska. The population was 797 at the 2000 census.The Madison County portion of Newman Grove is part of the Norfolk, Nebraska Micropolitan Statistical Area.-Geography:...
, Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
, who would later describe himself as bisexual
Bisexuality
Bisexuality is sexual behavior or an orientation involving physical or romantic attraction to both males and females, especially with regard to men and women. It is one of the three main classifications of sexual orientation, along with a heterosexual and a homosexual orientation, all a part of the...
although he said he had never had relations with men. Jacobson had, the previous year, ordered two magazines entitled Bare Boys I and Bare Boys II from Electric Moon, an adult bookstore
Sex shop
A sex shop, erotic shop is a shop that sells products related to adult sexual or erotic entertainment, such as sex toys, lingerie, clothing, pornography, and other related products...
in San Diego, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, that had been raided and shut down.
USPS investigators decided to send him a letter from a fictitious organization, the "American Hedonist
Hedonism
Hedonism is a school of thought which argues that pleasure is the only intrinsic good. In very simple terms, a hedonist strives to maximize net pleasure .-Etymology:The name derives from the Greek word for "delight" ....
Society", which supposedly sought to lobby for "the right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan
Puritan
The Puritans were a significant grouping of English Protestants in the 16th and 17th centuries. Puritanism in this sense was founded by some Marian exiles from the clergy shortly after the accession of Elizabeth I of England in 1558, as an activist movement within the Church of England...
morality
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
." Included was a questionnaire
Questionnaire
A questionnaire is a research instrument consisting of a series of questions and other prompts for the purpose of gathering information from respondents. Although they are often designed for statistical analysis of the responses, this is not always the case...
attempting to gauge the respondent's interest in various paraphilias, including pedophilia
Pedophilia
As a medical diagnosis, pedophilia is defined as a psychiatric disorder in adults or late adolescents typically characterized by a primary or exclusive sexual interest in prepubescent children...
and ephebophilia
Ephebophilia
Ephebophilia is the sexual preference of adults for mid-to-late adolescents, generally ages 15 to 19. The term was originally used in the late 19th to mid 20th century, and has been more recently revisited by Ray Blanchard. It is one of a number of sexual preferences across age groups subsumed...
. Jacobson indicated an "above average" interest in the latter, especially between males, but also stated he was opposed to the former. The USPS decided he was not a promising target and left him alone.
But some time later, Calvin Comfort, a "prohibited mailing specialist" for the region, found Jacobson's name in another file, and the government decided to try again, this time as part of an operation aimed at purchasers. In May 1986, they sent him mail from another fictitious organization, "Midlands Data Research", which was for those who "believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age". Jacobson confessed to them that he was "interested in teenage sexuality", asked for more information and that his name be kept confidential. This led to Jacobson getting mail from the "Heartland Institute for a New Tomorrow" (HINT), "an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process." Jacobson seemed to sympathize, writing in response that sexual freedom and freedom of the press were under attack by "right-wing fundamentalists
Fundamentalism
Fundamentalism is strict adherence to specific theological doctrines usually understood as a reaction against Modernist theology. The term "fundamentalism" was originally coined by its supporters to describe a specific package of theological beliefs that developed into a movement within the...
".
Along with a thank-you note from "Jean Daniels" of HINT also came a supposed list of others in the area with similar interests as possible pen pal
Pen pal
Pen pals are people who regularly write to each other, particularly via postal mail.-Purposes:A penpal relationship is often used to practice reading and writing in a foreign language, to improve literacy, to learn more about other countries and life-styles, and to make friendships...
s. But Jacobson never wrote any of them. So Comfort, under the pseudonym
Pseudonym
A pseudonym is a name that a person assumes for a particular purpose and that differs from his or her original orthonym...
"Carl Long", wrote back using a technique called "mirroring", claiming to be equally interested in depictions of sex acts between young boys. Jacobson said he, too, liked "good looking young guys (in their late teens and early 20's) doing their thing together". Neither Jacobson nor Long made any more explicit reference to pornographic materials and Jacobson stopped writing back after two letters. With no evidence that he had ever watched or possessed any child pornography, the USPS again dropped its efforts against him.
Those were renewed in March 1987 when the United States Customs Service
United States Customs Service
Until March 2003, the United States Customs Service was an agency of the U.S. federal government that collected import tariffs and performed other selected border security duties.Before it was rolled into form part of the U.S...
sent similar exploratory material, supposedly from Canada, to Jacobson and others on the USPS's list, and he responded, placing an order that was never filled. A catalog from a "Far Eastern Trading Company" was sent instead, along with other written material bemoaning the infringement of sexual freedoms. This time Jacobson ordered a publication called Boys Who Love Boys, which the catalog said featured "11 and 14 year old boys" who "get it on in every way imaginable. Oral
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
, anal
Anal sex
Anal sex is the sex act in which the penis is inserted into the anus of a sexual partner. The term can also include other sexual acts involving the anus, including pegging, anilingus , fingering, and object insertion.Common misconception describes anal sex as practiced almost exclusively by gay men...
and heavy masturbation
Masturbation
Masturbation refers to sexual stimulation of a person's own genitals, usually to the point of orgasm. The stimulation can be performed manually, by use of objects or tools, or by some combination of these methods. Masturbation is a common form of autoeroticism...
. If you love boys," it further read, "you will be delighted with this".
On June 16, 1987, Jacobson received a card in his mail telling him to go to the post office
Post office
A post office is a facility forming part of a postal system for the posting, receipt, sorting, handling, transmission or delivery of mail.Post offices offer mail-related services such as post office boxes, postage and packaging supplies...
and pick up the envelope that supposedly contained Boys Who Love Boys. Comfort observed him doing so and got a search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
for his home on that basis. He was arrested shortly thereafter, 26 months after the postal inspectors had first contacted him.
Criminal trial
Jacobson was indictedIndictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
on one count of knowingly receiving through the mails sexually explicit material depicting a minor in September. At trial in federal court
United States District Court for the District of Nebraska
The United States District Court for the District of Nebraska is the Federal district court whose jurisdiction is the state of Nebraska. Court offices are in Omaha, Lincoln, and North Platte....
, his attorney, George H. Moyer, noted his exemplary military service record, including a Bronze Star
Bronze Star Medal
The Bronze Star Medal is a United States Armed Forces individual military decoration that may be awarded for bravery, acts of merit, or meritorious service. As a medal it is awarded for merit, and with the "V" for valor device it is awarded for heroism. It is the fourth-highest combat award of the...
, service in Korea
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
and Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
and lack of a civilian criminal record beyond a drunken-driving
Drunk driving (United States)
Drunk driving is the act of operating and/or driving a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired...
conviction in 1958. He raised the entrapment defense.
Jacobson testified
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
that he had been "shocked and surprised" by the contents of the Bare Boys collections when he received them, as he had not expected the photos to depict very young boys: "I thought these were a nudist
Naturism
Naturism or nudism is a cultural and political movement practising, advocating and defending social nudity in private and in public. It may also refer to a lifestyle based on personal, family and/or social nudism....
type publication. Many of the pictures were out in a rural or outdoor setting. There was - I didn't draw any sexual connotation or connection with that".
The jury convicted him in April 1988. He was sentenced to three years imprisonment
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
, suspended
Suspended sentence
A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
to two years' probation
Probation
Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer...
and 250 hours of community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
, which he discharged by painting a school bus
School bus
A school bus is a type of bus designed and manufactured for student transport: carrying children and teenagers to and from school and school events...
and working at a library
Library
In a traditional sense, a library is a large collection of books, and can refer to the place in which the collection is housed. Today, the term can refer to any collection, including digital sources, resources, and services...
. He had to sell his share of the family farm to his sister to pay his legal bills, and was fired from his job driving a school bus in Newman Grove even though there was no evidence he had ever approached children sexually. He lowered his profile, often driving to more distant communities to run routine errands. Nonetheless, his hometown supported him. "Any of us could be caught up in such a sting," the Newman Grove local newspaper editorialized.
Appeals
A panel of appellate judges heard the case for the Eighth Circuit Court of AppealsUnited States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
. On January 12, 1990, Senior Judge Gerald Heaney and Chief Judge Donald Lay overturned the conviction on the grounds that the government had insufficient grounds to believe that Jacobson was likely to purchase the material it was offering to him. Judge George G. Fagg said in dissent that his colleagues had "declared war on the government's power to initiate undercover
Undercover
Being undercover is disguising one's own identity or using an assumed identity for the purposes of gaining the trust of an individual or organization to learn secret information or to gain the trust of targeted individuals in order to gain information or evidence...
investigations" and that reasonable suspicion need not be present for such operations to take place.
He would carry the day after federal prosecutors appealed for an en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
rehearing, reiterating that point for an eight-judge majority and saying that unless Jacobson could demonstrate that a specifically protected right had been violated by the investigation, the conviction would stand. The majority also rejected the entrapment defense, arguing that the postal investigators had merely provided Jacobson with opportunities to purchase child pornography and not sought to affect his predisposition (an important element in entrapment under U.S. law) to do so in any way.
Lay and Heaney were the sole dissenters, both filing separate opinions. The former argued that since Jacobson had not shown any predisposition toward breaking the law throughout his life as his Bare Boys purchases had been legal at the time, he was entrapped. The latter stuck to the panel opinion, arguing that the government had no reasonable belief that Jacobson would purchase child pornography. He also called investigative tactics sufficiently outrageous to justify reversal: "In my view, the government's investigation and prosecution of Jacobson amount to the deliberate manufacture of a crime that would never have occurred but for the Postal Service's overzealous efforts to create it".
Certiorari petition
Justice John Paul StevensJohn Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
supposedly picked Jacobson's case out of a pile of "hopeless" certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
petitions. After reading it, Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
made an argument moving and persuasive enough that Justices Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, and Stevens changed their minds and agreed to accept it. Arguments before the High Court, however, were limited by the grant to the question of whether Jacobson had been entrapped as a matter of law.
Entrapment in federal prosecutions
The entrapment defense at the federal level exists entirely in case law. Federal courts first recognized entrapment in Woo Wai v. United States (223 F 412 (9th CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
1915)), and the Supreme Court followed suit in Sorrells v. United States
Sorrells v. United States
Sorrells v. United States, 287 U.S. 435 , is a Supreme Court case in which the justices unanimously recognized the entrapment defense...
.
The Sorrells court grounded the entrapment defense in what has since been called the "subjective" test, in which the prosecution must overcome it by showing the defendant had a predisposition to commit the crime in any event. Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
, in a partial dissent, had argued instead for an "objective" standard, which focuses instead on the conduct of the law enforcement personnel involved and whether the crime would have occurred without their involvement, a call repeated by other justices in later decisions. While the majority of states have chosen to use the objective method, the Supreme Court has held firm to the former.
Before the Court
Jacobson's case attracted some national media attention. Civil libertariansCivil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
supported him, worried over what they saw as dangerous growth in government police powers during the Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
and Bush administrations, when law enforcement cracked down on drugs as well as pornography distribution at the behest of the Religious Right
Christian right
Christian right is a term used predominantly in the United States to describe "right-wing" Christian political groups that are characterized by their strong support of socially conservative policies...
. Operation Looking Glass, the USPS claimed, had netted 147 convictions, but only 35 where evidence was found that the offenders had either been involved in producing child pornography or molested children
Child sexual abuse
Child sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
. Critics claimed that the government was exaggerating the child-porn problem at best and contributing to it at worst, possibly by introducing some consumers to material they might never have developed a taste for otherwise.
It was the subject of a 60 Minutes
60 Minutes
60 Minutes is an American television news magazine, which has run on CBS since 1968. The program was created by producer Don Hewitt who set it apart by using a unique style of reporter-centered investigation....
segment, in which Jacobson told Mike Wallace
Mike Wallace (journalist)
Myron Leon "Mike" Wallace is an American journalist, former game show host, actor and media personality. During his 60+ year career, he has interviewed a wide range of prominent newsmakers....
, after pausing for several seconds and looking downward, that he broke down and ordered Boys Who Love Boys because he wanted to see just what it was that he was being so heavily solicited to buy. A postal inspector also admitted to the show that since it had successfully put most child-porn producers out of business, it was now going after consumers with material of its own.
Interested parties on both sides filed amici
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
. A group of conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
in both houses of Congress, including Newt Gingrich
Newt Gingrich
Newton Leroy "Newt" Gingrich is a U.S. Republican Party politician who served as the House Minority Whip from 1989 to 1995 and as the 58th Speaker of the U.S. House of Representatives from 1995 to 1999....
, Dick Armey, Henry Hyde
Henry Hyde
Henry John Hyde , an American politician, was a Republican member of the United States House of Representatives from 1975 to 2007, representing the 6th District of Illinois, an area of Chicago's northwestern suburbs which included O'Hare International Airport...
and Rick Santorum
Rick Santorum
Richard John "Rick" Santorum is a lawyer and a former United States Senator from the commonwealth of Pennsylvania. Santorum was the chairman of the Senate Republican Conference -making him the third-ranking Senate Republican from 2001 until his leave in 2007. Santorum is considered both a social...
, and the National Center for Missing and Exploited Children
National Center for Missing and Exploited Children
The National Center for Missing and Exploited Children is a private, non-profit organization established in 1984 by the United States Congress.-Establishment and overview:...
both argued for affirming the conviction, pointing to the invaluable nature of undercover investigations in fighting child pornography, worrying that requiring reasonable suspicion beforehand could make such operations impossible. Americans for Effective Law Enforcement said there had been no entrapment and that reasonable suspicion was not required before starting investigations such as Looking Glass. The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, its Nebraska chapter and the National Association of Criminal Defense Lawyers
National Association of Criminal Defense Lawyers
The National Association of Criminal Defense Lawyers is an American criminal defense organization. Their stated mission is to "Ensure justice and due process for persons accused of crime. Foster the integrity, independence and expertise of the criminal defense profession...
weighed in on Jacobson's behalf.
Arguments
Moyer, who had never before argued before the Supreme Court, continued to represent Jacobson (who was in the audience). In his briefBrief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
and at oral argument, he said that a mere stated interest in sex among young men did not rise to a level of proving predisposition, that the government should have had evidence in hand that Jacobson was actually willing to break the law to do so. (Kenneth Starr
Kenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
, then Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
, had maintained in the government's brief opposing certiorari that his prior purchase of the Bare Boys magazines was all the proof it needed, even if the action were legal at the time.) Pressed on other undercover investigative techniques, he admitted that a government-run pawn shop would be a permissible way to apprehend thieves despite a lack of evidence of predisposition because the crimes might well have occurred prior to any contact with the government or its operatives.
During oral argument, Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
responded to this by suggesting that some interests a person might express, such as recreational drugs, signified a willingness to violate social norms regardless of whether the conduct was illegal or not. Paul Larkin, who appeared for the government, had to admit to that there was no case law on entrapment where something that had previously been permitted was now prohibited. At one point, trying to argue that Jacobson did not have access to the defense of entrapment by estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
(where the government persuades an actor that it is legal to do something, only to prosecute them for it), Scalia told Larkin he'd lost him.
Decision
By a 5-4 margin, the justices reversed the conviction, agreeing that Jacobson had been entrapped, on April 6, 1992. It has since been reported that this was one of the rare cases where the decision changed after arguments. The original poll of the justices showed a 7-2 majority for affirmance, with only White and Stevens holding out. But White argued persuasively for reversal to his fellow Justices, and Blackmun and Clarence ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, who had replaced Marshall, changed their minds. It has been suggested that Thomas, who later established a reputation for allowing wide latitude to law enforcement similar to other contemporary Republican appointees, was especially sensitive at that time to Jacobson's situation due to the sexual harassment
Sexual harassment
Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...
allegations raised by Anita Hill
Anita Hill
Anita Faye Hill is an American attorney and academic—presently a professor of social policy, law and women's studies at Brandeis University's Heller School for Social Policy and Management. She became a national figure in 1991 when she alleged that U.S. Supreme Court nominee Clarence Thomas had...
during his own recent confirmation hearings.
Justice David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
later provided the swing vote, and opinions that White and Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
had already begun drafting had to be rewritten to reflect the changed outcome of the case.
Majority
White, reiterating what he had written in Ferber, acknowledged that child pornography was a social evil and that the government could use undercover investigations to enforce laws against it. After reviewing the previous cases on entrapment, he said that the more than two years in which investigators had tried to get Jacobson to buy various child-porn offerings had suggested he did not have a predisposition to do so: "... (I)t is our view that the Government did not prove that this predisposition was independent, and not the product of the attention that the Government had directed at petitioner since January, 1985".Since the Bare Boys purchases were legal at the time, they did not prove that he was willing to break the law to acquire such materials. "... (E)vidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition", he wrote. "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". He also noted that, at trial, the prosecution had not challenged Jacobson's assertion that he did not know the magazines would contain pictures of minors until he received it.
Furthermore, he suggested, the appeals to political action he received may have given him reasons other than prurient interest to order the material, indeed even suggested he had a duty to order them as a way of taking a stand:
... (T)he strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner's interest in sexually explicit materials banned by law, but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorshipCensorshipthumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
and the infringement of individual rights ... The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2½ years to convincing him that he had or should have the right to engage in the very behavior proscribed by law.
White also dismissed the notion that his responses to the surveys he was sent proved he was willing to order child porn illegally, saying they only indicated "a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations ... petitioner's responses hardly support an inference that he would commit the crime of receiving child pornography through the mails". He noted that twice before the Court had suggested that an individual's private fantasies are not the government's business, even if it has a strong interest in proscribing the enactment of those fantasies.
"When the Government's quest for convictions", he concluded, "leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."
Dissent
O'Connor made two arguments for the dissenting justices: that predisposition was proven by the fact that Jacobson had ordered materials both times he was actually solicited, and that the Court had usurped the jury's rightful role in deciding whether he was entrapped. She also expressed fears that the court had so broadened the definition of predisposition as to make it a viable defense in almost any case.She began by stating what was, to the minority, the most relevant aspect of the case.
Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face.
She noted also that Jacobson had written, in a note included with his order, that he would be doing more business with the company later and that he wanted to "(b)e discreet in order to protect you and me".
The majority, she said, had so greatly expanded the government's burden of proof in undercover sting operations as to make future such investigations untenable:
... (A)fter this case, every defendant will claim that something the Government agent did before soliciting the crime "created" a predisposition that was not there before. For example, a bribetakerBriberyBribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later offered. A drug buyer will claim that the description of the drug's purity and effects was so tempting that it created the urge to try it for the first time. In short, the Court's opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects.
She scoffed at White's claim that the calls to activism were possibly instrumental in creating a predisposition to offend: "The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away ... Nor did the Government claim to be organizing a civil disobedience movement, which would protest the pornography laws by breaking them." It was up to the jury, she said, to decide what Jacobson meant when he said on the stand that he wanted to see "what all the trouble and hysteria was about", and they had done so.
In Part II, she accused her colleagues of redefining predisposition so that it had to include an awareness that the action to be undertaken was illegal, despite the fact that the CPA did not include specific intent to receive child pornography as an element of the crime. "The elements of predisposition," she said, "should track the elements of the crime". The Bare Boys purchases were not, she argued, as dispositive of that as the majority claimed. Her last sentences responded to White's, saying that there was no question that the jury had been properly instructed
Jury instructions
Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...
on entrapment law and thus, their decision that Jacobson could not claim entrapment should be allowed to stand.
Reaction
New York TimesThe New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
reporter Linda Greenhouse
Linda Greenhouse
Linda Greenhouse is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School...
described the verdict as "an anomaly, an extreme misuse of Government power in which an innocent person was led to commit a manufactured crime" and thus not likely to signal a shift back in favor of defendants after a period that had seen a move away from the liberalism of the Warren and Burger Courts towards a more law-and-order
Law and order (politics)
In politics, law and order refers to demands for a strict criminal justice system, especially in relation to violent and property crime, through harsher criminal penalties...
–oriented Court. Editorial
Editorial
An opinion piece is an article, published in a newspaper or magazine, that mainly reflects the author's opinion about the subject. Opinion pieces are featured in many periodicals.-Editorials:...
ists at newspapers around the country — the Times, the Chicago Tribune
Chicago Tribune
The Chicago Tribune is a major daily newspaper based in Chicago, Illinois, and the flagship publication of the Tribune Company. Formerly self-styled as the "World's Greatest Newspaper" , it remains the most read daily newspaper of the Chicago metropolitan area and the Great Lakes region and is...
, and the Washington Post — praised the court's decision, as did Jacobson's hometown paper, the Omaha World-Herald
Omaha World-Herald
The Omaha World-Herald, based in Omaha, Nebraska, is the primary daily newspaper of Nebraska, as well as portions of southwest Iowa. For decades it circulated daily throughout Nebraska, and in parts of Kansas, South Dakota, Missouri, Colorado and Wyoming. In 2008, distribution was reduced to the...
. Columnists on both sides of the political spectrum, from Clarence Page
Clarence Page
Clarence Page is an American journalist, syndicated columnist, and senior member of The Chicago Tribune editorial board.-Early years:...
to William Safire
William Safire
William Lewis Safire was an American author, columnist, journalist and presidential speechwriter....
joined in celebrating his turn of fate and criticizing the excessive zeal of the postal inspectors. Civil libertarians savored what they felt was an overdue triumph against the overreach of law enforcement during the preceding decade. "... (W)hen the State gets
behind a moral panic, no one is safe," wrote Bob Chatelle of the political issues committee of the American Writers' Union, pointing to other zealous prosecutions of people with no demonstrable interest in child pornography who had nevertheless fallen afoul of newer laws by taking or possessing pictures of naked children with no apparent sexual content.
Others pointed to what they called the horrific cost of Project Looking Glass. Among its other targets had been another middle-aged Nebraska farmer, Bob Brase, of Shelby
Shelby, Nebraska
Shelby is a village in Polk County, Nebraska, United States. The population was 690 at the 2000 census. The center of population of Nebraska is located near Shelby . Shelby lies along the north side of U.S. Highway 81 near the eastern edge of Polk County...
. Like Jacobson, his name had been on the mailing list of a porn distributor, and despite neither having a criminal record nor any interest in child porn he was relentlessly solicited, including letters from the same "Carl Long". Finally he ordered a videotape
Videotape
A videotape is a recording of images and sounds on to magnetic tape as opposed to film stock or random access digital media. Videotapes are also used for storing scientific or medical data, such as the data produced by an electrocardiogram...
and was arrested and indicted. No other prohibited material was found in his house, either.
Just before he was to be arraigned
Arraignment
Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...
, he drove into a field and shot
Gunshot
A gunshot is the discharge of a firearm, producing a mechanical sound effect and a chemical gunshot residue. The term can also refer to a gunshot wound caused by such a discharge. Multiple discharges of a firearm or firearms are referred to as gunfire. The word can connotate either the sound of a...
himself, leaving behind a wife and two children. His was one of four suicide
Suicide
Suicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
s by Looking Glass targets. Critics wondered if these suicides, which investigators had said they expected, were worth it. In 1999, Comfort also took his own life, citing despondency over the stresses of his job.
Legacy
Jacobson, opined Paul Marcus, a law professor at William & Mary three years later, "brought entrapment back from the (almost) dead." He noted that in its wake, courts were much more willing to allow, and sometimes agree with, entrapment defenses than they had been beforehand. Influential sitting judge Richard PosnerRichard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
had used similar language a year before, writing in an opinion that it had "breathed new life" into the defense. Most significantly, he said, appeals courts were now considering it in cases where the defendant had seemed willing to commit the crime, examining predisposition closely in cases where they would have previously rejected it out of hand.
Despite vows by prosecutors and heads of federal law enforcement agencies that the decision would not change the way they did undercover operations, there were some noticeable, at least at the federal level. Later versions of the Attorney General's Guidelines on FBI Undercover Operations, widely emulated by other federal agencies, show some changes in language from those published before Jacobson. "Entrapment should be avoided", became "entrapment must be avoided", and investigators were told it must be apparent to them that the activity they were investigating was illegal, rather than just corrupt. A definition of entrapment was included that used the same language as the decision.
Authors Joyce Murdoch and Deb Pryce say another effect of the case was a softening of the Court's attitude towards the gay community
Gay community
The gay community, or LGBT community, is a loosely defined grouping of LGBT and LGBT-supportive people, organizations and subcultures, united by a common culture and civil rights movements. These communities generally celebrate pride, diversity, individuality, and sexuality...
. Jacobson was the first such person to come before the Court to receive even the slightest empathy
Empathy
Empathy is the capacity to recognize and, to some extent, share feelings that are being experienced by another sapient or semi-sapient being. Someone may need to have a certain amount of empathy before they are able to feel compassion. The English word was coined in 1909 by E.B...
from it, and even a few years earlier his case might have been doomed from the start on that basis alone.
Subsequent lower-court jurisprudence
Jacobson remains the Court's current standard on the issue as it has not considered an entrapment case since. Similar sting operations continue to be widely used against all types of targets and in new ways. Most significantly, the rise of the InternetInternet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
has led to operations where investigators pose as minors of either sex in chat room
Chat room
The term chat room, or chatroom, is primarily used by mass media to describe any form of synchronous conferencing, occasionally even asynchronous conferencing...
s, trying to entice online predator
Online predator
An online predator is an adult Internet user who exploits vulnerable children or teens, usually for sexual or other abusive purposes.Online victimization of minors can include child grooming, requests to engage in sexual activities or discussions by an adult, unwanted exposure to sexual material ,...
s to come meet them in person and have sex. When they do, they are arrested. These operations have become popular viewing on Dateline NBC
Dateline NBC
Dateline NBC, or Dateline, is a U.S. weekly television newsmagazine broadcast by NBC. It previously was NBC's flagship news magazine, but now focuses on true crime stories. It airs Friday at 9 p.m. EST and after football season on Sunday at 7 p.m. EST.-History:Dateline is historically notable for...
s "To Catch A Predator
To Catch a Predator
To Catch a Predator is an American reality television series that features hidden camera investigations by the television newsmagazine program Dateline NBC. It is devoted to impersonating underage youth and detaining adults who contact them over the Internet for sexual liaisons...
" segments and other television shows.
Most such operations are over very quickly and result in guilty pleas, but entrapment is sometimes alleged, and a protracted investigation of a Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
man led to the first Internet entrapment case to be considered at the appellate level. Writing for a Ninth Circuit majority (the arrest occurred in California) in Poehlman v United States, (217 F3d 692 (9th Cir 2000)), Judge Alex Kozinski
Alex Kozinski
Alex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...
reversed the conviction, saying the defendant had met the Jacobson standard and shown that the idea of crossing state lines to have sex with a minor had been implanted only after extensive email
Email
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
correspondence with an undercover FBI agent.
Other analysis and commentary
Kenneth Lord notes that the decision did not address the subjective vs. objective test question at all. He observes that the decision adds two new strictures as part of its general rule that prosecutors must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to any contact by government agents:- Conduct by the defendant which was legal at the time but later made illegal does not suffice to prove predisposition, and
- The defendant's predisposition must be evaluated based on his or her conduct prior to the commencement of any investigation.
But beyond that, it makes no effort to address the subjective vs. objective question, nor does its discussion of intent delve into the matter of specific vs. general intent. Some appeals courts, however, have developed more specific entrapment tests on their own.
University of Arizona
University of Arizona
The University of Arizona is a land-grant and space-grant public institution of higher education and research located in Tucson, Arizona, United States. The University of Arizona was the first university in the state of Arizona, founded in 1885...
law
James E. Rogers College of Law
James E. Rogers College of Law is the law school at the University of Arizona located in Tucson, Arizona and was the first law school founded in the State of Arizona, opening its doors in 1915. Formerly known as University of Arizona College of Law, it was renamed in 1999 in honor of noted...
professor
Professor
A professor is a scholarly teacher; the precise meaning of the term varies by country. Literally, professor derives from Latin as a "person who professes" being usually an expert in arts or sciences; a teacher of high rank...
Gabriel J. Chin points out that the entire federal entrapment defense rests on statutory construction, which allows for the possibility that Congress could simply repeal or modify it so that operations implanting suggestion of criminal activity such as the one that ensnared Jacobson were specifically authorized by law. Since the majority had shown such distaste for it, how, he wondered, would it rule on the constitutionality of such a law if it were to be challenged?
See also
- List of United States Supreme Court cases, volume 503
- List of United States Supreme Court cases
- Lists of United States Supreme Court cases by volume
- List of United States Supreme Court cases by the Rehnquist Court