Today in 1992: The Supreme Court gives new life to the entrapment defense

April 6, 2012

Today in Legal History“Entrapment” is a well-known term of art in criminal law, along with such others as “self-incrimination” and “double jeopardy.”

The term refers, simply, to a situation where conduct by law enforcement induces someone to commit a crime that the person would have been unlikely to do otherwise.

The invocation of the entrapment defense, however, requires the use of much more legalese than this minimal definition provides.

And the lens under which courts today examine the validity of an entrapment defense comes from the Supreme Court’s ruling in Jacobson v. United States, decided 20 years ago today.

The facts of the case start shortly before the enactment of the Child Protection Act of 1984, which made it illegal to possess pornographic materials depicting minors or purchase them through the mail.

In February 1984, prior to the Act’s enactment, Keith Jacobson ordered two magazines containing photographs of nude preteen and teenage boys, which was perfectly legal at the time.

During the same month as passage of the Act, the bookstore from which Jacobson had ordered the magazines was raided and shut down by government agents.

After finding Jacobson’s name on the bookstore mailing list, two government agencies sent mail to him through five fictitious organizations and a fake pen pal.

The first of these agencies was the U.S. Postal Service.

The organizations invented by the USPS were made to appear to Jacobson as advocacy and lobbying groups, and the correspondences from these bogus groups spoke not only of promoting sexual freedom, but of fighting against government censorship of speech.

This continued for 26 months, at which time the second agency jumped in: the U.S. Customs Service.

After receiving his name on lists submitted by the USPS, the Customs Service, using the name of a fictitious Canadian company, mailed a brochure to Jacobson advertising photographs of young boys engaging in sex.

Jacobson placed an order that was never filled.

USPS then made a similar effort, writing to Jacobson under the name “Far Eastern Trading Company Ltd.”

The letter from the USPS spoke of “hysterical nonsense” in the media concerning pornography, and went on to say that “we have devised a method of getting these to you without prying eyes of U.S. Customs seizing your mail.”

The letter then went on to invite Jacobson to request more information, which he did.

Jacobson then received a catalog, from which he ordered one magazine.

He was arrested after a controlled delivery of a photocopy of the magazine.

A jury found Jacobson guilty, and his appeals eventually reached the Supreme Court.

Here’s where the legalese comes in, but I’ll try to translate it as much as possible.

Clarence Thomas

Clarence Thomas joined the 5 Justice majority

At the time that SCOTUS heard Jacobson, there were two different tests for determining whether entrapment had occurred: the “subjective” test and the “objective” test.

The subjective test looks at the defendant’s state of mind to see whether he or she had any “predisposition” to commit the crime (and a lack of predisposition means that entrapment occurred).

The objective test looks instead at the government’s conduct to see whether that conduct caused a normally law-abiding person to commit a crime.

The subjective test is the less defendant-friendly one, and, unfortunately for defendants, is also the more widely preferred test to courts.

Though the Supreme Court applied the subjective test in Jacobson, it still found that entrapment occurred, and reversed Jacobson’s conviction.

What about Jacobson’s “predisposition,” as seems evident with his purchasing magazines before they were illegal?

The majority said that Jacobson may have a “predisposition” to view child pornography, but the evidence did not show that he had a predisposition to break the law to obtain it.

Rather, the majority said, that it was only after over two years of the government advocating to Jacobson that he should break the law that he actually did.

To reach this conclusion, the majority didn’t leave the subjective test as it was found.

Instead, it modified the subjective test by analyzing the defendant’s state of mind in the context of the government’s actions.

In other words, though there may have been evidence of predisposition in Jacobson’s case, any such predisposition was dwarfed by the government’s involvement in the creation of the crime.

Adding this additional element of considering the government’s actions made the subjective test much friendlier to defendants, and it breathed new life into the entrapment defense, which was on the verge of death.

Thanks to the Jacobson ruling, judges take entrapment defenses much more seriously, and the fact that it is still available to be invoked is almost entirely attributable to the 1992 ruling.