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May 7, 2012

Split Eighth Circuit upholds supervised release condition prohibiting "photographic depictions of child nudity"

Though potential of even great interest to First Amendment gurus than sentencing fans, a split panel of the Eighth Circuit provides a fascinating read today in US v. Kelly, No. 11-1421 (8th Cir. May 7, 2012) (available here). These excerpts from the opinion for the Court sets up what is at issue and the basic holding: 

After a jury convicted A.J. Kelly of being a felon in possession of a firearm, the district court 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. 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....

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 [a number of] individualized findings ... [and] referenced a prior offense where Kelly was convicted of first-degree sexual assault of a child."

Though the majority opinion upholding this condition is notable, it is the concurring opinion authored by Judge Beam and especially the dissenting opinion authored which make the opinion a must-read.  I cannot readily summarize all the terms of the debate, but I can quote the final portion of Judge Bye's dissent to spotlight why it seems this case has garnered some strong judicial feelings:

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 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.

May 7, 2012 at 01:45 PM | Permalink


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One of the things that strike me is that the arguments given relate directly to the appellant's record, not to any status of sex offense in particular. Those arguments weigh the applicability of restrictions that are accorded to him. It strikes me that virtually every argument, when transferred to a normal registered sex offender, would render the restrictions said RSO are subject to are unconstitutional, based upon the Court's interpretation of many of the cited cases.

Ironically, this appellant could legally change the diaper of his sibling's child with no penalty, but having a picture of the same child is a violation of probation. Something is a bit askew here.

Posted by: Eric Knight | May 7, 2012 2:25:02 PM

I agree with the majority. I'm not troubled by this opinion at all and I don't normally take a backseat on the 1A to anyone. I think given the defendant's history and characteristics this restriction makes a great deal of sense to me. I agree in full with the special concurrence of Judge Beam.

Posted by: Daniel | May 7, 2012 3:31:39 PM

I don't really see the problem here, honestly. To have that condition imposed on someone with the defendant's history for a 36-month period seems...well...reasonable. I would *hope* that, if in the unlikely scenario imagined by the dissent, that if such an event were to occur that the PO would exercise his or her discretion and not jerk his chain just because they can.

@ Eric:

I agree. It does seem weird -- though I'm pretty certain that our national collective psyche has a weird relationship with sex, and an even weirder one with pornography.

Posted by: Guy | May 7, 2012 4:22:47 PM

"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."

I empathize with the dissenting opinion of the judge, it beckons back to a lone voice in the woods and the realization that an increasing number in the justice system lack or are losing any hint of common sense.

Posted by: Tom Danson | May 7, 2012 6:38:30 PM

It is not just this case that has Judge Bye upset. There are at least two other special conditions cases that Judge Bye has filed dissents in because the majority circumnavigated around circuit precedent. You would have to read these and other special condition cases out of the Eighth Circuit over the course of the past two years to appreciate Judge Bye's strong reaction. With Sr. Judge Bright taking fewer and fewer cases, Judge Bye does stand alone.

Posted by: angela | May 8, 2012 12:06:29 PM

well i think they are retarded. think we need a new word for idiot judges of this lvl and i have just the one


short verion of


first the man's conviction has nothing to do with a sex crime

and then the bigger

WHY in the HELL would you need to special rule to tell him he can't have someting that is ALREADY ILLEGAL IN THE ENITIRE COUNTY!

"that contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity."

all this tells me is the judges involved in this case from beginning to end who supposed this stipulation are part of that group of humans who are almost TOO DAMN STUPID to even be worth shooting to get them out of the gene pool!

Posted by: rodsmith | May 8, 2012 1:56:34 PM

rodsmith, thank you for your uncensored commentary...love it :-)

Posted by: advocate | May 8, 2012 4:56:08 PM

The lawyers live in the upside world of the Twilight Zone. I am disappointed in Daniel who should know the research. Photographic depictions of sexual activity, and their use for masturbation are associated with reductions in sex crimes against real people. That research conclusion is true in the case of adults and in the case of children.

Posted by: Supremacy Claus | May 8, 2012 5:06:01 PM

advocate --

One thing you have to love about rodsmith is that the man does not mince words. You never have to parse through a bunch of BS equivocation to find out what he thinks.

Posted by: Bill Otis | May 8, 2012 7:23:43 PM

and yet another recent news item.....


Posted by: Grant | May 9, 2012 7:16:12 PM

you know if guy thinks that a restriction upon an icky perv was reasonable it must have not been nearly as severe enough and sure enough it was. in fact, as much as i want to support any restriction on an icky perv no matter how silly i actually agree with the dissent that this restriction is simply silly.

for this repeat offender icky perv i would suggest surgical removal of his sex organs. or life in prison. or life in a secure sex offender treatment center. or life on an icky perv island isolated from society. or even 36 additional months of prison would be better.

erika :)

Posted by: Erika | May 10, 2012 10:54:02 AM

well erika i think we need a law to protect the people from those named "erika!" they should either be drowned within 24hrs of being given that name or prohibied from coming within 1,000,000,000,000,000 miles of any other person; place; or thing!

there we go ANOTHER useless illegal law.

and i still hate this damn captch crap!

Posted by: rodsmith | May 10, 2012 10:38:48 PM

rodsmith, does this mean that you are not going to invest large sums of money in Erika's Icky Perv Solutions?

Posted by: Erika | May 11, 2012 6:23:12 PM

only if the solution is to put icky perv's named erika on an island in the middle of nowhere far from society! so we can be safe!

Posted by: rodsmith | May 13, 2012 2:29:36 PM

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