Jacobson v. United States, 503 U.S. 540 (1992)

When the government participates in the commission of a crime to catch a person committing an illegal act, that person may raise a defense of entrapment. Its agents may only provide an opportunity for a person to commit a crime; they cannot coerce a person into acting. The defense of entrapment will arise when the government has persuaded an otherwise law-abiding person to commit a crime that he or she would not have committed without government intervention. Jacobson v. United States provided the United States Supreme Court with the opportunity to explore the degree to which the government could induce unlawful behavior.

Before Congress passed a law banning the receipt in the mail of pornographic materials featuring children, the defendant Jacobson ordered and received two such magazines. During the next two and a half years, two different governmental agencies set up several fictitious agencies to persuade him to order child pornography. At the end of the twenty-six–month operation, he ordered a magazine and was promptly arrested. He raised the defense of entrapment.

In the trial court, the judge instructed the jury on the defense of entrapment, however, the jury still found Jacobson guilty of violating the law against receipt through the mail of sexually explicit materials featuring children. Jacobson appealed ultimately to the Supreme Court.

The Court stated that during the course of an investigation, ‘‘Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.’’ A person must have the predisposition to commit a crime before any involvement by the government. In Jacobson’s case, the prosecution could not carry the burden of proving beyond a reasonable doubt that he was predisposed to break the law before any involvement by the agents. The contact, itself, may have created a predisposition in Jacobson to break the law. Jacobson placed his order only after twenty-six months of repeated contact by the government’s fictitious organizations.

During the effort to enforce the law, ‘‘law enforcement 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.‘’’ The Justices further stated that if a person would never have broken the law without the intervention of the government, the courts should intervene on the person’s behalf.

The dissent argued that the government’s conduct was not so egregious as to create a defense of entrapment. The action consisted only of sending materials that could have easily been thrown away. When the defendant was given the opportunity to act and place an order with the fictitious company, he did so willingly. This view was rejected by the majority of the Supreme Court.

PAUL MARCUS

References and Further Reading

• Colquitt, Joseph A., Rethinking Entrapment, American Criminal Law Review 41 (2004): 1389.
• Dillof, Anthony M., Unraveling Unlawful Entrapment, Journal of Criminal Law & Criminology 94 (2004): 827.
• Marcus, Paul, The Entrapment Defense. 2nd Ed. Lexis Publishing.

See also Due Process; Entrapment by Estoppel; Entrapment and ‘‘Stings’’