## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1421

___________ United States of America, *

* Appellee, * * Appeal from the United v. * States District Court for * the District of Nebraska. A. J. Kelly, *

* Appellant, *

*

___________ Submitted: November 17, 2011 Filed: May 7, 2012

___________ Before RILEY, Chief Judge, BEAM, and BYE, Circuit Judges.

___________

BEAM, Circuit Judge.

After a jury convicted A. J. Kelly of being a felon in possession of a firearm, the district court 1 sentenced Kelly to 115 months' imprisonment and 36 months' supervised release. As part of Kelly's s upervised release, the district court imposed several special conditions. Kelly challenge d one of these conditions, which concerned possession of materials containing nudity or depicting or alluding to sexual activity.

1 The Honorable Laurie Smith Camp, who became Chief Judge of the United States District Court for the District of Nebraska on December 1, 2011.United States v. Kelly , 625 F.3d 516, 517 (8th Cir. 2010). Finding merit in Kelly's challenge, a panel from th is circuit remanded fo r re-sentencing, id. at 517, and the district court amended the special conditi on. Kelly now appeal s the amended special condition, and we affirm.

I. BACKGROUND

On April 21, 2008, police officers execu ted a search warrant on Kelly's home in Omaha, Nebraska. During the search, officers discovere d a .22 caliber firearm and ammunition. Kelly was char ged with and found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Kelly to 115 months' imprisonment and 36 months' supe rvised release. The district court imposed several special conditions thatgoverned Kelly's supervised release.

Special condition fifteen provided, "T he Defendant shall neither possess nor have under his/her control any material, legal or illegal, th at contains nudity or that depicts or alludes to sexual activity or depicts sexually arousi ng material." Kelly challenged this special condition, and a panel from this circuit vacated and remanded for re-sentencing. Kelly , 625 F.3d at 522. In reaching its conclusion, the panel determined that the district court ha d failed to support condition fifteen with individualized findings and the condition was overbroad. Id. at 520-21.

On remand, the district court re-sente nced Kelly and amended special condition fifteen. The amended condition provided, "The Defendant shall neither possess nor have under his control any material, legal or illegal, th at contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity." To support this condition, the district court made the following individualized findings:

-2-Well, and I will find for the recordbased upon the defendant's criminal history, that he is a sexual predator, that he is predisposed to exploiting children sexually, and that if he is inpossession of materials that contain photographic depictions of nude child ren or children engaged in sexual activity, that would be contrary to his rehabilitation. And it would also be indicative that he is pursuing a c ourse of predatory activity again and would be cause for the probation office to be concerned, take action and perhaps get him either into counseling or some kind of programming to deal with this issue. So, that's th e amendment we'll do. And we will see how that works.

* * *

So this defendant has an issue where he is not only a danger to society and a danger to children, but he is inneed of rehabilitation. And I think it is in his best interests in term s of his rehabilitation that he not be viewing photographs of nude childre n and that he not be viewing depictions of children engaged insexual activity. So, it is the rehabilitation aspect that I think is important in supervised release that warrants a condition like this.

In its findings, the court referenced a prior offense where Kelly was convicted of first-degree sexual assault of a child. Th e district court highlighted the basic facts of the underlying offense at the sentenci ng hearing: "The defendant does have a history of sexual assault, sexual abuse, particularly abuse of his 12-year-old stepdaughter or daughter of a girlfriend . . . who was impregnated." Accordingly, over Kelly's objection, the district court impos ed special condition fifteen as amended. Kelly now appeals special condition fifteen.

-3-II. DISCUSSION

The sole issue on this appeal is whether special condition fifteen is unconstitutionally overbroad. 2When a defendant raises a proper objection in district court, we generally review the terms and conditions of supervised release for abuse of discretion. United States v. Smith , 655 F.3d 839, 845 (8th Cir. 2011). However, we are "particularly reluctant to uphold sweeping restrictions on important constitutional rights and appl[y] de novo review to such conditions." Id. (internal quotation omitted).

According to Kelly, special condition fifteenis overbroad and thus violates his First Amendment rights. Specifically, Kelly asserts that the special condition violates the First Amendment because it goes be yond prohibiting unprotected speech, such as child pornography, and also prohibits him from possessing legal photographic depictions of child nudity, such as Raphael 's "Madonna with the Christ Child." We disagree and find the special condition supported by individualized findings and sufficiently narrow in light of those findings.

For the sake of argument, we begin withthe assumption that Kelly has a "First Amendment interest in viewing and po ssessing" photographic depictions of child nudity. Osborne v. Ohio , 495 U.S. 103, 108 (1990). Having this interest, convicted individuals "do not forfeit a ll constitutional protections by reason of their conviction." Bell v. Wolfish , 441 U.S. 520, 545 (1979). However, merely retaining constitutional

2 In a pro se letter that appears in the appellate record, Kelly also seeks review of his conviction. "[W]e typically do not consider pro se submissions when an appellant is represented by couns el." United States v. Cheney , 571 F.3d 764, 767 n.3 (8th Cir. 2009). Given that Kelly was re presented by counsel and offers no specific claim of error in his pro se submission, we see no reason to depart from our general rule in this case.

-4-rights "does not mean that these rights are notsubject to restrictions and limitations." Id. ; see also Farrell v. Burke , 449 F.3d 470, 497 (2d Cir. 2006) (noting "that the First Amendment rights of parolees are circ umscribed"); United States v. Ritter , 118 F.3d 502, 504 (6th Cir. 1997) ("[s]upervisory cond itions that implicate fundamental rights such as freedom of speech and freedom of association are subject to careful review, but if primarily designed to meet the e nds of rehabilitation and protection of the public, they are generally upheld"). Ultimately, special condition fifteen "is only unconstitutionally overbroad if its overbreadth is real and substantial in relation to its plainly legitimate sweep." United States v. Thompson , 653 F.3d 688, 695 (8th Cir. 2011).

To avoid "sweeping restrictions on important constitutional rights[,]" statutory mandates guide district courts when imposing special conditions. United States v. Mayo , 642 F.3d 628, 631 (8th Cir. 2011) (per curiam). First, the special condition must be reasonably related to the natureand circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crim es of the defendant, and the defendant's educational, vocational, medi cal or other correctional need s. United States v. Forde
, 664 F.3d 1219, 1222 (8th Cir. 2012). "Second, the conditions must involve[ ] no greater deprivation of liberty than is reas onably necessary to advance deterrence, the protection of the public from future crim es of the defendant, and the defendant's correctional needs." United States v. Simons , 614 F.3d 475, 479 (8th Cir. 2010) (alteration in original) (quot ation and internal quotation omitted). Finally, the special condition must be "consistent with any pe rtinent policy statements issued by the Sentencing Commission." 18 U.S.C. § 3583(d )(3). To ensure these statutory mandates are followed, a "district court mustmake an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record." Forde , 664 F.3d at 1222 (quotation omitted).

-5-Although we have expresse d concerns about imposing broad prohibitions, special conditions that prohibit the possession of pornography–even legal pornographic materials–are not unusual. See United States v. Wiedower , 634 F.3d 490, 496 (8th Cir. 2011). Indeed, in a line of cases we have found it appropriate for a district court to place outright bans on pornography. See, e.g. , id. at 492, 497 (reviewing for plain error and allowing ban on any "form of media containing pornographic images"); United States v. Demers , 634 F.3d 982, 985-86 (8th Cir. 2011) (per curiam) (determining that condition banning "pornographic materials of any type" was not overly restrictive under the First Amendment in light of the defendant's sex offenses); United States v. Boston , 494 F.3d 660, 667, 668 (8th Cir. 2007) (determining ban on "any form of pornography" not overly broad); United States v. Ristine , 335 F.3d 692, 694 (8th Cir. 2003) (reviewing for plain error and determining ban on "any pornographic materials" not overly broad).

Yet, we have rejected prohibitions th at "could apply to any art form that employs nudity." Kelly , 625 F.3d at 521 (quotation omitted). For example, in Simons , the district court imposed a condition that prohibited the defendant from possessing "any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material." 614 F.3d at 483. Finding the condition overbroad, we recognized that th e condition prohibited the defendant from "viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo's David, or Botticelli's Birth of Venus, all of which depict nudity." Id. In Kelly , the predecessor to the pres ent appeal, we invalidated special condition fifteen as the district court failed to make individualized findings, and the special condition was "virtually identical to the provision invalidated in [Simons ]." 625 F.3d at 520-21.

The present case lies somewhere betw een the pornography and nudity lines of authority. On one hand, although the defi nition of pornography is elusive, it seems

-6-to represent something more than mere child nudity. See Simons , 614 F.3d at 484; see also United States v. Johnson , 639 F.3d 433, 439 (8th Cir. 2011) (attempting to describe "mere nudity"). On the other hand, we are not dealing with a special condition as restrictive as that in Simons or Kelly , because the challenged clause is limited to photographic depictions of child nudity. Notably, the challenged clause is not so restrictive that it "could apply to any art form that employs nudity." Kelly , 625 F.3d at 521 (emphasis added). Indeed, the provision is silent on adult nudity or even legal adult pornography. Moreover, the cla ss of prohibited mate rials covered by the condition is relatively narrow, as Kelly is only prohibited from possessing photographic depictions. Cf. Kelly , 625 F.3d at 517 (vacating special condition that bars possession of any material containing nudity); Simons , 614 F.3d at 483 (rejecting condition that prohibits " any material, legal or illegal, th at contains nudity" (emphasis added)).

Not only is the present condition less restrictive than the conditions we have rejected in the past, "[o]ur prior case la w limits the district court's discretion only insofar as the court imposes limitations on the basis of pure speculation or assumptions unrelated to the rehabilitative process." United States v. Kreitinger , 576 F.3d 500, 506 (8th Cir. 2009) (alteration inoriginal) (quotations omitted). And "[w]hen a defendant has demonstrated a se xual interest in children, a ban on the possession of child pornography often serves to rehabilitate the defendant, to protect children, and to deter fu ture activity." Thompson , 653 F.3d at 694.

Here, the district court made a specifi c finding that Kelly is predisposed to exploiting children sexually and that view ing photographic depictions of child nudity would undermine his rehabilitative process. Given the district court's individual findings concerning Kelly's relatively recent predatory behavior and focus on rehabilitation, we do not view the distri ct court's decision to ban photographic depictions of child nudity as being based on "pure speculation or assumptions

-7-unrelated to the rehabilitative process." Kreitinger , 576 F.3d at 506. To a great extent, we rely on the experience and "judi cial common sense" of a sentencing judge when imposing special conditions, Forde , 664 F.3d at 1224 (quotation omitted), and we do not require "a direct connection" between a defendant's past history and a special condition, United States v. Poitra , 648 F.3d 884, 890 (8th Cir. 2011). Therefore, in light of the district court's individualized findings, we do not find that the special condition's "overbreadth is real and substantial in relation to its plainly legitimate sweep." Thompson , 653 F.3d at 695. Accordingly, the district court did not err in imposing special condition fifteen.

III. CONCLUSION

We affirm the sentence of the district court.

BEAM, Circuit Judge, specially concurring.

I write separately in support of th e sentencing judge's thoughtful and wellreasoned "special condition of supervised release" at issue in this appeal and to respectfully, but firmly, reject the dissent's critical analysis of the sentencing court's judgment in that regard. A single phrase within the district court's work product is ultimately involved.

I commence with a diagram highlighti ng the substantive portions of the wordage at issue–"The Defendant shall ne ither possess nor have under his control any material, legal or illegal, that contains [(1)] child pornography, or [(2)] photographic depictions of [(a)] child nudity or of [( b)] children engaged inany sexual activity." Because the dissent purports to be "trouble[ d] . . . on so many levels" by the district court's ruling, it is not easy to identify th e depth and breadth of its trepidation. Commonsense and the dissent's extensive emanations seemto indicate, however, that

-8-the source of the dissent's angst is f ound among only a few words within the special condition–The Defendant shall neither possess nor have under his control any legal material that contains photographic depictions of child nudity.

By way of example, the dissent refers specifically to Raphael's "Madonna with the Christ Child," Raphael's "Saint John the Baptist," Bouguereau's "Birth of Venus," and the vintage Coppertone baby ad. My conclusion as to source emerges from the belief that the dissent does not (or at leas t should not) object to this convicted felon and acknowledged sexual pred ator being prohibited from receipt and possession of illegal material of any kind or of "child pornography." See18 U.S.C. § 2256(1), 8(A)- (C) (defining child pornography as enumerat ed materials containing minors under the age of eighteen years); see also Black's Law Dictionary 1279 (9th ed. 2009) (defining child pornography as "[m]aterial depicti ng a person under the ag e of 18 engaged in sexual activity"). Indeed, such pornogr aphy possession, depending upon applicable statutory elements, is usually a federal crim e and its intrinsic expression is ordinarily not protected by the First Amendment. Li kewise, it seems counterintuitive to believe that the dissent supports possession and control of photographic depictions of children engaged in sexual activity, at l east by this particular offender.

Thus, I turn to the single limiting phrase pr esumably at issue. To begin, I find no precedent, and the dissenti ng judge cites none, that supports the dissent's argument, postat 14-15, that because a limitation focuse s upon only one aspect of an issue, all limitations on the issue must be banned. Such an idea is particularly pernicious when child nudity and sexual predation directed at pre-pubescent or barely post-pubescent children may be intertwined in a given s ituation. The dissent's approach would apparently permit a pedophile to view photographic depictions of child nudity without restraint because limitations on viewing "atoddler" bathing and other similar nonphotographic exposure to child nudity are not also prohibited.

-9-Next, and of even more importance, the dissent's evaluation of the harmlessness of the possession of legal photographic depictions of child 3 nudity by a sex offender of any stripe is not widely shared. Indeed , as with most matters of this kind there is substantial reasoned disagreement. Some, if not many, observers believe that even pre-pubescent depictions are a serious problem among a range of sex offenders, possibly even those with Mr. Kelly's known propensities. A pedophile may derive sexual satisfaction from innocuous situations, publications, or places. Duane L. Dobbert, Halting the Sexual Predator Among Us: Preventing Attack, Rape, and Lust Homicide66 (2004). To this end, a pedophile may derive sexual gratification from a department store catalog. Id. And, seemingly, there is no bright-line rule in the preand post-pubertal process that highlights the boundaries of sexua l interest by various sexual predators. See Ray Blanchard et al., Pedoph ilia, Hebephilia, and the DSM-V
, 38 Arch. of Sex. Behav. 335, 336, 348 (2009). Thus, I reject the dissent's notion that expert testimony was needed to establish th at Mr. Kelly will or will not reoffend if exposed to depictions of nude children. See United States v. Kerr , 472 F.3d 517, 521 (8th Cir. 2006). Gi ven the discretion afforded a district court, I see no error in exercising prudence within constitutional bounds. SeeUnited States v. Wiedower
, 634 F.3d 490, 497 (8th Cir. 2011) (allowing prohibition of both child and adult pornography, even though the defendant's offe nses only related to child pornography). And, a district court may depend upon a wide range of information in its sentence decisionmaking, seeUnited States v. Schlosser , 558 F.3d 736, 740 (8th Cir. 2009), and need not explain its entire thought process, see United States v. McGlothen , 556 F.3d 698, 703 (8th Cir. 2009). As long as it is apparent that the district court "considered the parties' arguments and ha[d ] a reasoned basis for exercising [its] own

3 "At common law, [a child is] a person who has not reached the age of 14." Black's Law Dictionary 271 (9th ed. 2009); see also United States v. Freeman , 808 F.2d 1290, 1292 (8th Cir. 1987) (highlighti ng difference betweenfederal statute defining child as someone under eighteen year s of age and state statute defining child as someone under sixteen years of age).

-10-legal decisionmaking authority," the distri ct court has fulfille d its duties. Id. (alterations in original) (quotation omitted).

Finally, as with all portions of the se ntencing exercise, a sentencing court that operates within the sentencing guidelines and within its institutional strengths is accorded deferential abuse of discretion in formulating conditions of supervised release. Kimbrough v. United States , 552 U.S. 85, 109 (2007).

The district court was well within its ample discretion in fashioning this particular requirement.

BYE, Circuit Judge, dissenting.

Before imposing a special condition of supe rvised release, a district court must ensure the special condition "'involve[s] no greater deprivation of liberty than is reasonably necessary' to advance deterrence, the protection of the public from future crimes of the defendant, a nd the defendant's correctional needs." United States v. Crume , 422 F.3d 728, 733 (8th Cir. 2005) (quo ting 18 U.S.C. § 3583(d)(2) and citing §§ 3553(a)(2)(B), (a)(2)(C), a nd (a)(2)(D)). The imposition of a special condition of supervised release also requires the districtcourt to "'make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure thatthe special condition satisfies the statutory requirements.'" United States v. Thompson , 653 F.3d 688, 691 (8th Cir. 2011) (quoting United States v. Wiedower , 634 F.3d 490, 493 (8th Cir. 2011)). Our court is "'particularly reluctant to uphold sweeping restrictions on important constitutional rights'" such as the First Amendment rights involved here . United States v. Kelly , 625 F.3d 516, 520 (8th Cir. 2010) (quoting Crume , 422 F.3d at 733). The prohibition on A.J. Kelly's right to possess legal photographic depic tions of child nudity clearly does not satisfy any of these requirements. I therefore respectfully dissent.

-11-The district court's prohibition on legal material protected by the First Amendment, and our approval of the distri ct court's action, troubles me on so many levels it becomes difficult to know where to begin. Let me start by diffusing what I believe may be a thoughtless, knee-jerk reaction to a prohibition on material depicting "child nudity" without full consideration of how vastly different in scope and kind the prohibition becomes when one adds the singl e word "legal" to the prohibition – the only aspect of the special condition Kelly challenges. 4

Legal photographic depictions of child nudity include the photographs of prepubescent children enjoying a bath undoubted ly taped to grandpa rents' refrigerators throughout this country, photographs of new born infants proudly displayed by parents on office desks or included in Christmas car ds and birth announcements to friends and relatives, photographs of classical works of art such as Raphael's "Madonna with the Christ Child," Raphael's "Saint John the Baptist," or Bouguereau's "Birth of Venus," as well as photographs of images such as the vintage Coppertone baby ad.

The class of material depicting "legal" child nudity must, by necessity, be completely innocuous and wholly lacking in any prurient interest for it to be considered "legal," otherwise it would inev itably fall into the category of illegal child pornography. I dare say the cl ass of material depicting legal child nudity necessarily excludes most (if not all) photographic de pictions of nude post-pubescent females.

Notwithstanding the inherently innocent nature of this category of material protected by the First Amendment, a fact which seems most obvious to me while apparently escaping my collea gues, the majority places the prohibition at issue in this case somewhere between a permissible re striction on a defendant possessing adult

4 Because the single phrase of the districtcourt's special condition prohibiting Kelly from possessing legal child nudity is th e only issue before us, the concurrence's discussion of other aspects of the special condition is wholly irrelevant.

-12-pornography, and an impermi ssible restriction on a defendant's right to possess biology textbooks or art books depicting adult nudity. SeeAnte at 6-7. I am dismayed by the majority's comparison of the photograph of a ne wborn baby to adult pornography, much less the suggestion that photographs I may possess of my children and grandchildren as infants and toddlers enjoy less First Amendment protection than a biology textbook depicting adult nudity.

A district court may not categorically impose particular special conditions on certain types of offenders, su ch as sexual offenders. Kelly , 625 F.3d at 520. "Instead, we require a particularized showing of the need for the condition in each case." Id. Despite the majority's conclusory assertions to the contrary, there is no particularized showing in this case of the need to prohi bit Kelly from possessing legal depictions of child nudity which (I cannot strongly emphasi ze enough) must necessarily be lacking in any prurient interest to be considered legal.

Kelly's criminal history shows his se xual predatory tendencies are limited to post-pubescent females. When he was nine teen years old, he sexually assaulted a former girlfriend who was eighteen years ol d. Presentence Investigation Report (PSR) at ¶ 40. When he was thirty years old, he was charge d with sexually assaulting his girlfriend's post-pubescent daughter, a charge proven by the fact that Kelly impregnated the girl (the same fact wh ich also clearly establishes she was postpubescent). Id. at ¶ 44. There is nothing in Kelly's criminal history, or in the district court record, which shows Kelly has any se xual interest whatsoever in pre-pubescent children, or that his sexual interest in females mature enough to be menstruating will somehow be triggered by the photograph of a ne wborn male or a classical work of art depicting nude cherubs.

While I can acknowledge so me defendants' aberrant sexual proclivities may be triggered by the sight of a newborn's birth announcement, the district court's ban on

-13-Kelly's right to possess such a photogr aph is based on "pure speculation or assumptions unrelated to the rehabilitative process." United States v. Kreitinger , 576 F.3d 500, 506 (8th Cir. 2009) (internal quotation marks and citation omitted). There is no testimony from a mental health expert , or any other competent evidence in this record, to indicate Kelly will be more likel y to sexually assault another post-pubescent female teenager if allowed to possess, fo r example, a photograph of his infant son taking a bath. Cf. United States v. Bender , 566 F.3d 748, 752 (8th Cir. 2009) (reversing a district court's ban on a defe ndant's ban on the possession of any sexually stimulating materials based on nothing morethan the district court's belief "sex offenders need to have a very tight re in [and have no] . . . business looking at Playboy magazine"). Common sense, judicial or mostly otherwise, does not support such a connection. The rational, the thoughtful, the objective, can read the majority's decision and judge for themselves whether it is supported by common sense. I, myself, can not believe the level of dysfunc tion necessary to makea grown man desire a post-pubescent female simply by viewi ng the photograph of a newborn infant, can be gauged by the application of common se nse without requiring input from a mental health expert to explain such a bizarre and aberrant thought process.

To make matters worse, the majority defends this special condition by relying upon one of the condition's arbitrary shortc omings, the fact that Kelly is only prohibited from possessing photographic depictions of legal child nudity. Assuming for a moment common sense alone was enough for us to divine the inner workings of Kelly's mind, and we knew without the assistance of a psychologist that viewing the image of a toddler in a bathtub would trigge r in Kelly the urge to sexually molest a seventeen year-old post-pubescent female, I do not see how limiting the prohibition to photographic depictions would advance the goal of deterrence or serve Kelly's correctional needs. For if Kelly's aberrance is truly triggered by such images, the prohibition should include his possession of any form of such an image, including print materials, videotapes, or digital images found on the internet.

-14-Under the district court's condition, Ke lly can watch the birth of a newborn infant on a television show such as Grey's Anatomy , but he is subject to revocation of his supervised release if he takes a photogr aph of the same image while watching the show. He can possess a poster of the C oppertone baby ad, but he cannot possess a photograph of the same poster. Kelly can possess a DVD of the motion picture
"T HREE M EN AND A B ABY " starring Tom Selleck, but be se nt back to prison for taking a photo of the DVD cover. He can find digital images of Raphael's "Madonna with the Christ Child" on the internet and view them on his cell phone, but he cannot carry a photograph of the same image in his walle t. Kelly can possess a print copy of a diaper advertisement depicting a topless fe male toddler in a parenting magazine, but cannot possess a photograph of the same imag e. How do we explain such irrational and bizarre distinctions to a discerning and skeptical public?

The majority's decision to affirm the district court not only erodes our applicable criminal and constitutional preced ents, but it further exposes our court to the just criticism of a public which alrea dy is skeptical of the judicial system. Criminal defendants, as well as the general public, expect that "[t]he punishment should fit the crime." DuBose v. State of Minn. , 893 F.2d 169, 172 (8th Cir. 1990) (Arnold, J., concurring in part and di ssenting in part). What message do we communicate about our own judgment when we announce a federal firearm offender can be sent back to prison because he possessed a photograph of his newborn son, or because Kelly's probation officer just happened to conduct a hom e visit on the same day a relative mailed him a birth announcement of a niece or nephew?

I, for one, expect more. I expect pr obation officers in the federal system to consider carefully the special conditions of supervised release they recommend and ensure such conditions are rationally conn ected and narrowly tailo red to a defendant's specific correctional needs, without creating absurd and illogical pitfalls and traps for defendants on supervised release. I expect the same of district courts when they

-15-consider whether to adopt those recommendati ons. I expect the same of the lawyers employed by the Department of Justice when defending such conditions in our courts. I also expect our appellate courts to appl y the law rationally a nd even-handedly, and with the exercise of common sense, when determining whether such conditions comport with constitutional limits.

The majority's decision to affirm the district court refl ects a failure of our justice system on all of these levels. Because I cannot sit idly by and remain silent in the wake of such failures, I must respectfully dissent.

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