Stung by a sting The pornography trap that backfired

Myriam Marquez

April 09, 1992|By Myriam Marquez

STING operations aren't without merit. Sometimes, they are the only way the good guys can nab smart crooks who cover their tracks -- drug dealers, weapons dealers, politicians on the take.

But Keith Jacobson wasn't dealing or wheeling. He was simply a 56-year-old Nebraska farmer and 20-year veteran of the armed forces who was seduced by the government into breaking the law. On Monday, the Supreme Court narrowly overturned his federal pornography conviction.

The 5-4 majority opinion, written by Justice Byron R. White, stated the obvious: When government sets out to break the law to catch a crook, it had better have a willing partner in crime.

Jacobson wasn't so willing, nor was he a criminal.

The only thing the government had on Jacobson was his name on a bookstore's mailing list. In 1984, Jacobson had ordered two magazines containing pictures of nude teen-age boys. As immoral as this is to many of us, it was legal at the time.

A few months later, Congress broadened the definition of child pornography to include nude pictures even if there was no depiction of sexual activity, as was the case with the magazines Jacobson had bought earlier. Then the Postal Service and the Customs Service set out to catch anyone getting such trash.

It took 28 months of enticements -- in the form of unsolicited letters, surveys and catalogs from bogus companies set up by the government -- before Jacobson took the bait and ordered a magazine. When federal agents arrested him, they found nothing more in his home to incriminate him.

Getting those solicitations over and over again for more than two years must have been like being plugged in to the Home Shopping Network. You watch it long enough, and you're bound to buy something totally useless.

This is not to make light of child pornography. Using children for pornographic pictures is and should remain illegal. But that's not the issue here.

The question is, how far can the government go before it becomes a criminal element in and of itself?

In essence, the majority of the court held to a 60-year-old precedent that says the government has to show that a suspect is predisposed to breaking the law. If Jacobson had "promptly availed himself" of the opportunity presented by the sting to break the law, the case against him would have stuck.

Twenty-six months, however, does not make for promptness.

Remember Abscam? In that case, the congressmen took the money when first offered it by undercover FBI agents posing as oil sheiks. They weren't hounded for two years.

Jacobson's case was clearly an abuse of government power. So are many forfeiture cases being conducted in the war on drugs. In such cases, police can take cash from people without having any proof that this money was ill-gotten. They do that on the highways, and now at airports.

The "60 Minutes" news program recently showed how federal agents are taking thousands of dollars from people at airports simply because they fit a certain profile -- usually, black or Hispanic men who are carrying lots of money and who pay for their tickets in cash for brief out-of-town trips.

Must be drug dealers, the cops say. And probably many of them are.

But the fact remains that in these civil forfeiture cases, you're guilty until you prove otherwise. The burden of proof isn't on the government to show the money is tainted, as it should be.

It's government-sanctioned larceny.

So the question remains: How far can the government go before it becomes a criminal element in and of itself? As it stands in the drug war, too far.

Myriam Marquez is an editorial page columnist for the Orlando Sentinel.

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