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 court1

 sentenced Kelly to 115 months' imprisonment and 36 months'

supervised release. As part of Kelly's supervised release, the district court imposed

several special conditions. Kelly challenged 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 this circuit remanded for re-sentencing, id. at 517, and the

district court amended the special condition. Kelly now appeals the amended special

condition, and we affirm. 

I. BACKGROUND

On April 21, 2008, police officers executed a search warrant on Kelly's home

in Omaha, Nebraska. During the search, officers discovered a .22 caliber firearm and

ammunition. Kelly was charged 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' supervised release. The district court

imposed several special conditions that governed Kelly's supervised release.

Special condition fifteen provided, "The Defendant shall neither possess nor

have under his/her control any material, legal or illegal, that contains nudity or that

depicts or alludes to sexual activity or depicts sexually arousing 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 had failed to support condition fifteen with

individualized findings and the condition was overbroad. Id. at 520-21.

On remand, the district court re-sentenced 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, that 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:

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Well, and I will find for the record based 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 in possession of materials that contain

photographic depictions of nude children or children engaged in sexual

activity, that would be contrary to his rehabilitation. And it would also

be indicative that he is pursuing a course 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 the 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 in need of rehabilitation. And I think

it is in his best interests in terms of his rehabilitation that he not be

viewing photographs of nude children and that he not be viewing

depictions of children engaged in sexual 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. The district court highlighted the basic facts

of the underlying offense at the sentencing 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 imposed special condition fifteen as amended. 

Kelly now appeals special condition fifteen.

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II. DISCUSSION

The sole issue on this appeal is whether special condition fifteen is

unconstitutionally overbroad.2

 When 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 fifteen is overbroad and thus violates his

First Amendment rights. Specifically, Kelly asserts that the special condition violates

the First Amendment because it goes beyond 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 with the assumption that Kelly has a "First

Amendment interest in viewing and possessing" photographic depictions of child

nudity. Osborne v. Ohio, 495 U.S. 103, 108 (1990). Having this interest, convicted

individuals "do not forfeit all 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 counsel." United States v. Cheney, 571 F.3d 764, 767 n.3

(8th Cir. 2009). Given that Kelly was represented 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.

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rights "does not mean that these rights are not subject 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 circumscribed"); United States v. Ritter, 118 F.3d

502, 504 (6th Cir. 1997) ("[s]upervisory conditions 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 ends 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 nature and circumstances of the offense, the

defendant's history and characteristics, the deterrence of criminal conduct, the

protection of the public from further crimes of the defendant, and the defendant's

educational, vocational, medical or other correctional needs. United States v. Forde, 

664 F.3d 1219, 1222 (8th Cir. 2012). "Second, the conditions must involve[ ] no

greater deprivation of liberty than is reasonably necessary to advance deterrence, the

protection of the public from future crimes of the defendant, and the defendant's

correctional needs." United States v. Simons, 614 F.3d 475, 479 (8th Cir. 2010) 

(alteration in original) (quotation and internal quotation omitted). Finally, the special

condition must be "consistent with any pertinent policy statements issued by the

Sentencing Commission." 18 U.S.C. § 3583(d)(3). To ensure these statutory

mandates are followed, a "district court must make 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).

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Although we have expressed 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 that "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 the 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 present 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 between the pornography and nudity lines of

authority. On one hand, although the definition of pornography is elusive, it seems

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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 class of prohibited materials 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, that 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 law 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 in original) (quotations omitted). And

"[w]hen a defendant has demonstrated a sexual interest in children, a ban on the

possession of child pornography often serves to rehabilitate the defendant, to protect

children, and to deter future activity." Thompson, 653 F.3d at 694. 

Here, the district court made a specific finding that Kelly is predisposed to

exploiting children sexually and that viewing 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 district court's decision to ban photographic

depictions of child nudity as being based on "pure speculation or assumptions

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unrelated to the rehabilitative process." Kreitinger, 576 F.3d at 506. To a great

extent, we rely on the experience and "judicial 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 the 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 highlighting the substantive portions of the

wordage at issue–"The Defendant shall neither 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 in any 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 the depth and breadth of its trepidation. 

Commonsense and the dissent's extensive emanations seem to indicate, however, that

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the source of the dissent's angst is found 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 least should not) object to this convicted felon

and acknowledged sexual predator being prohibited from receipt and possession of

illegal material of any kind or of "child pornography." See 18 U.S.C. § 2256(1), 8(A)-

(C) (defining child pornography as enumerated 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 depicting a person under the age of 18 engaged in

sexual activity"). Indeed, such pornography possession, depending upon applicable

statutory elements, is usually a federal crime and its intrinsic expression is ordinarily

not protected by the First Amendment. Likewise, it seems counterintuitive to believe

that the dissent supports possession and control of photographic depictions of children

engaged in sexual activity, at least by this particular offender.

Thus, I turn to the single limiting phrase presumably at issue. To begin, I find

no precedent, and the dissenting judge cites none, that supports the dissent's argument,

post at 14-15, that because a limitation focuses 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 situation. The dissent's approach would

apparently permit a pedophile to view photographic depictions of child nudity without

restraint because limitations on viewing "a toddler" bathing and other similar nonphotographic exposure to child nudity are not also prohibited.

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Next, and of even more importance, the dissent's evaluation of the harmlessness

of the possession of legal photographic depictions of child3

 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

Homicide 66 (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 sexual interest by various

sexual predators. See Ray Blanchard et al., Pedophilia, 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 that 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). Given the discretion afforded a district court, I see no error in

exercising prudence within constitutional bounds. See United States v. Wiedower,

634 F.3d 490, 497 (8th Cir. 2011) (allowing prohibition of both child and adult

pornography, even though the defendant's offenses only related to child pornography). 

And, a district court may depend upon a wide range of information in its sentence

decisionmaking, see United 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) (highlighting difference between federal statute

defining child as someone under eighteen years of age and state statute defining child

as someone under sixteen years of age).

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legal decisionmaking authority," the district court has fulfilled its duties. Id.

(alterations in original) (quotation omitted). 

Finally, as with all portions of the sentencing 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 supervised 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, and the defendant's correctional needs." United States v.

Crume, 422 F.3d 728, 733 (8th Cir. 2005) (quoting 18 U.S.C. § 3583(d)(2) and citing

§§ 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)). The imposition of a special condition of

supervised release also requires the district court to "'make an individualized inquiry

into the facts and circumstances underlying a case and make sufficient findings on the

record so as to ensure that the 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 depictions of child nudity clearly does not satisfy any of

these requirements. I therefore respectfully dissent.

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The district court's prohibition on legal material protected by the First

Amendment, and our approval of the district 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 single 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 undoubtedly taped to grandparents' refrigerators

throughout this country, photographs of newborn infants proudly displayed by parents

on office desks or included in Christmas cards 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 inevitably fall into the category of illegal child

pornography. I dare say the class of material depicting legal child nudity necessarily

excludes most (if not all) photographic depictions 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 colleagues, the majority places the prohibition at issue in this

case somewhere between a permissible restriction on a defendant possessing adult

4

Because the single phrase of the district court's special condition prohibiting

Kelly from possessing legal child nudity is the only issue before us, the concurrence's

discussion of other aspects of the special condition is wholly irrelevant.

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pornography, and an impermissible restriction on a defendant's right to possess

biology textbooks or art books depicting adult nudity. See Ante at 6-7. I am

dismayed by the majority's comparison of the photograph of a newborn 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, such 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 prohibit Kelly from possessing legal depictions of

child nudity which (I cannot strongly emphasize enough) must necessarily be lacking

in any prurient interest to be considered legal.

Kelly's criminal history shows his sexual predatory tendencies are limited to

post-pubescent females. When he was nineteen years old, he sexually assaulted a

former girlfriend who was eighteen years old. Presentence Investigation Report (PSR)

at ¶ 40. When he was thirty years old, he was charged with sexually assaulting his

girlfriend's post-pubescent daughter, a charge proven by the fact that Kelly

impregnated the girl (the same fact which 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 sexual 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 newborn male or a classical work of art

depicting nude cherubs.

While I can acknowledge some defendants' aberrant sexual proclivities may be

triggered by the sight of a newborn's birth announcement, the district court's ban on

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Kelly's right to possess such a photograph 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 likely to sexually assault another post-pubescent

female teenager if allowed to possess, for 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 defendant's ban on the possession of any sexually

stimulating materials based on nothing more than the district court's belief "sex

offenders need to have a very tight rein [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 dysfunction necessary to make a grown man desire

a post-pubescent female simply by viewing the photograph of a newborn infant, can

be gauged by the application of common sense 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 shortcomings, 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 trigger 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.

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Under the district court's condition, Kelly 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 photograph of the same image while watching the

show. He can possess a poster of the Coppertone baby ad, but he cannot possess a

photograph of the same poster. Kelly can possess a DVD of the motion picture

"THREE MEN AND A BABY" starring Tom Selleck, but be sent 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 wallet. Kelly can possess a print copy of a

diaper advertisement depicting a topless female toddler in a parenting magazine, but

cannot possess a photograph of the same image. 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 precedents, but it further exposes our court to

the just criticism of a public which already 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 dissenting 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 home visit on the same

day a relative mailed him a birth announcement of a niece or nephew?

I, for one, expect more. I expect probation officers in the federal system to

consider carefully the special conditions of supervised release they recommend and

ensure such conditions are rationally connected and narrowly tailored 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

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consider whether to adopt those recommendations. 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 apply the law rationally and 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 reflects 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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