Jacobson v. United States

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1992 US Supreme Court case on entrapment

1992 United States Supreme Court case

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 sexual abuse material 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 other than regarding controlled-substance enforcement. By relying exclusively on whether the defendant had a predisposition to commit the crime, the court seemed to have finally resolved a lingering issue in its previous decisions on the subject.

The decision was considered 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".

Background of the case

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U.S. anti-child pornography legislation and early cases

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Until the late 1970s, there were no federal laws specifically addressing the production, distribution or possession of child sexual abuse material (CSAM), and it was readily available to those who sought it. While some was imported from European countries where it was produced, there was also a domestic industry.

Media exposés and popular outrage caused Congress to pass by unanimous vote the Protection of Children Against Sexual Exploitation Act of 1977 (SEOC), which criminalized the production and sale of child pornography. This act was signed into law by President Jimmy Carter on February 6, 1978.

The legislation was supported by a unanimous decision of the Supreme Court in _New York v. Ferber _, 458 U.S. 747 (1982), 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.

Soon 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 liberties advocates 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, ended almost all domestic child-porn production. [_unreliable source
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Investigation and arrest of Keith Jacobson

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In January 1985 inspectors for the United States Postal Service (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, even 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 bachelor 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 resulted in 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 being attacked 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 pals . But Jacobson never wrote to any of them. So Comfort, under the pseudonym "Carl Long", wrote back using a technique termed "mirroring", claiming to have interests calculated to be similar to those believed held by Jacobson, and specifically, 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 20s) doing their thing together". Neither Jacobson nor Comfort 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 CSAM, 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 named 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, Jacobs

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