From: kadie@herodotus.cs.uiuc.edu (Carl M. Kadie)
Subject: [clari.news.sex] Supreme Court curbs police sting operations
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Sat, 11 Apr 1992 00:16:49 GMT

Copyright 1992 by UPI. Reposted with permission from the ClariNet
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	WASHINGTON (UPI) -- The Supreme Court Monday made it more difficult
for police to pursue undercover sting operations, ruling that a man who
bought child pornography after a 2 1/2 year government probe was
entrapped.
	The court, by a 5-4 vote, said police and government agents can no
longer launch undercover investigations without first having reasonable
suspicion that the target has committed or is likely to commit a crime.
	The court threw out the 1987 conviction of Keith Jacobson, a Kansas
farmer and Vietnam War veteran, for receiving child pornography through
the mail.
	Justice Clarence Thomas split from the four more conservative members
of the high court and voted in the majority with justices Byron White,
Harry Blackmun, John Paul Stevens and David Souter.
	``In their zeal to enforce the law ... 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,'' White wrote for the
majority.
	``Where the government has induced an individual to break the law and
the defese of entrapment is at issue, as it was in this case, the
prosecution must prove beyond reasonable doubt that the defendant was
disposed to commit the criminal act prior to first being approached by
government agents,'' wrote White.
	In a dissenting opinion, Justice Sandra Day O'Connor -- joined by
Chief Justice William Rehnquist and justices Anthony Kennedy and Antonin
Scalia -- said the court had stripped a major law enforcement weapon away
from police.
	``Today, the court holds that government conduct may be considered to
create a predisposition to commit a crime, even before any government
action to induct the commission of the crime,'' wrote O'Connor. ``In my
view, this holding changes entrapment doctrine.''
	In 1984, when there was no federal law against it, Jacobson received
from a bookstore two magazines called Bare Boys, which contained nude
photographs of boys.
	A subsequent federal law made it illegal to receive through mail
sexually explicit depictions of children.
	The government found Jacobson's name on a mailing list for the store
where he bought Bare Boys, and the sting began.
	After 2 1/2 years of overtures, Jacobson, a retired school bus driver,
bought a magazine from the government depicting boys aged 11 and 14
engaged in sexual activity. The magazine, ``Boys Who Love Boys,'' had
been distributed by an undercover postal inspector, and Jacobson was
arrested for receiving child pornography.
	He received the magazine on June 16, 1987, and immediately was
arrested.
	A trial court convicted Jacobson, sentencing him to two years'
probation and 250 hours' community service.
	But a three-judge panel of the 8th U.S. Circuit Court of Appeals then
overturned the conviction, finding Jacobson had been entrapped because
the government ``did not have a reasonable suspicion based upon
articulable facts'' that he was predisposed to commit the crime.
	The entire 8th Circuit then reversed the panel and reinstated the
conviction. It found that reasonable suspicion was not necessary to
launch the probe because Jacobson ``had no constitutional right to be
free of investigation.''
	The high court Monday disagreed.
	``Had the agents in this case simply offered (Jacobson) the
opportunity to order child pornography through the mails, and (Jacobson)
-- who must be presumed to know the law -- had promptly availed himself of
this criminal opportunity, it is unlikely that his entrapment defense
would have warranted a jury instruction,'' wrote White.
	``But that is not what happened here. By the time (Jacobson) finally
placed his order, he had already been the target of 26 months of
repeated mailings and communications from government agents and
fictitious organizations,'' White continued. ``Therefore, although he
had become predisposed to break the law by May 1987, it is our view the
the government did not prove that this predisposition was independent
and not the product of the attention that the government had directed at
(Jacobson) since January 1985.''
	O'Connor said that despite the majority's belief that the ruling will
not halt ``run-of-the-mill sting operations,'' it very well could.
	``After this case, every defendant will claim that something the
government agent did before soliciting the crime 'created' a
predisposition that was not there before,'' O'Connor wrote for the
dissent.
	``For example, a bribe taker 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,'' O'Connor wrote. ``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,'' she warned, ``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.''
 ------
90-1124 Keith Jacobson vs. United States of America

--
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign