You might remember that back around Thanksgiving 2007, Cincinnati Police Sergeant Bryce Bezdek was seriously injured on I-75 while he was laying stop sticks in an effort to end a high speed chase. The driver who was being pursued lost control of her vehicle, slamming into a truck that slammed into Sergeant Bezdek; that driver was eventually sentenced to serve 20 years in prison. (Original coverage here.)
I just saw on Facebook (and there's also a story at WCPO) that Modern Mom is sponsoring a contest; first prize is a Florida getaway vacation to Disney World. Sergeant Bezdek's wife, Toni, has entered a video. To see (and, hopefully, vote for) her video, go here.
As of a few minutes ago, the Bezdeks have a commanding lead, with over 15,000 votes, constituting about 97% of all votes cast. The contest runs through next Friday. You can vote once per computer per day.
There's a lot of platitudes that could be written here. Suffice it to say: Bezdek's a guy who was injured while trying to protect our community, and who by all accounts is making an unabashedly courageous recovery. So point and click a couple times, and help him, his wife, and his kids get to hang out with the Big Cheese for a few days. Vote!!! I can't think of a family more deserving (and perhaps in genuine need) of a few days of fun in the sun.
And I suspect (apart from possibly noting the results of the contest next week) that this is the last time this blog will ever link to Modern Mom.
Friday, March 13, 2009
Vernon Manor Closing
The Vernon Manor will close its doors at the end of the month. I don't have much to say, other than it's unfortunate. The Vernon Manor has been a terrific, historic, non-downtown place for guests to stay. When I was in law school, it was where we housed out-of-town judges (primarily federal appellate judges and state supreme court judges) who came in for the annual moot court competition, always to positive reviews.
JenJen (a/k/a Tavern Wench, my favorite bartender blogger), alerted us to the news on her own blog and in the comments to the post below. I wanted to bump the story to provide a thread for folks to share their thoughts.
JenJen (a/k/a Tavern Wench, my favorite bartender blogger), alerted us to the news on her own blog and in the comments to the post below. I wanted to bump the story to provide a thread for folks to share their thoughts.
Best Advice Column Ever
Except for the fact that I was in Cincinnati while I was reading this, there's no discernible Cincinnati connection here. I just had to share this.
A woman sends a letter to an advice columnist with the following question:
How do I tell my fiance that I want to adopt children, because he's so ugly I don't want to bear children that might end up looking like him?
Have a great weekend!
A woman sends a letter to an advice columnist with the following question:
How do I tell my fiance that I want to adopt children, because he's so ugly I don't want to bear children that might end up looking like him?
Have a great weekend!
Support Streetcars!
On March 25th you can show your support for Streetcars in Cincinnati by attending a fundraiser at Grammer's.
5:30PM to 7:30PM
Suggested Donation of $35 (Contribute on-line)
5:30PM to 7:30PM
Suggested Donation of $35 (Contribute on-line)
Wednesday, March 11, 2009
Inscrutable
Police officers have really difficult jobs; I'm quite sure I couldn't handle the responsibility, stress, or thanklessness of the position. But sometimes, I just can't fathom what motivates their policies and procedures.
This morning, as I drove to the Justice Center a little before eight o'clock, the traffic light at Central Parkway and Vine was out. I'd heard about the problem on the news; I hadn't realized that the light wasn't even flashing red, but was just dead. So I was pleased as I approached the intersection to see a police car, lights flashing, parked at the corner. I assumed an officer was directing traffic at the intersection. A good idea, given how many pedestrians cross Central Parkway there.
Nope. The officer was sitting in his car. Maybe he was there, prepared to catch anyone who didn't treat the intersection as a four-way stop. Beats me. But he sure wasn't much help to people trying to safely cross the street or drivers trying to navigate the intersection.
This morning, as I drove to the Justice Center a little before eight o'clock, the traffic light at Central Parkway and Vine was out. I'd heard about the problem on the news; I hadn't realized that the light wasn't even flashing red, but was just dead. So I was pleased as I approached the intersection to see a police car, lights flashing, parked at the corner. I assumed an officer was directing traffic at the intersection. A good idea, given how many pedestrians cross Central Parkway there.
Nope. The officer was sitting in his car. Maybe he was there, prepared to catch anyone who didn't treat the intersection as a four-way stop. Beats me. But he sure wasn't much help to people trying to safely cross the street or drivers trying to navigate the intersection.
Tuesday, March 10, 2009
Some Truth About the Kirkland Case
The details trickling out regarding the murder of thirteen year-old Esme Kenney are grisly. Whomever committed this crime engaged in an unspeakably horrific act against humanity. If that person is Anthony Kirkland--the man under arrest and accused of the murder--he will most likely face the harshest sentence allowed under Ohio law, the death penalty.
A trio of commentators have emerged today to use this week's events as an opportunity to raise the possibility that systemic failures in the criminal justice process paved the way for Esme's death. But the Enquirer editorial board, Peter Bronson, and several members of City Council all seem prone to histrionics, exaggeration, and outright falsehoods. So let's see if we can clarify the question they all raise: Why was Kirkland free?
The Enquirer reports that Kirkland was convicted in 1987 of killing his girlfriend and then setting fire to her body. That's obviously a horrible, horrible offense, and perhaps a foreshadowing of the most recent allegations against him. He was sentenced to serve 7 to 25 years in prison. He served 16, and then was paroled. From the editorial board:
Should Kirkland have been paroled in 2003? I don't know. I wasn't at the parole hearing. I don't know what influenced the parole board to let him go. (The fact that he spent 16 years in prison for an offense committed while he was a teenager was probably considered by the board.) But this is why Ohio sentencing law changed in the mid-1990's in favor of "truth in sentencing." We don't want parole board members deciding how long a defendant should serve; that's a judge's job. These kinds of indefinite sentences no longer exist. When we hear about people being released early for parole, we're hearing about "old law" cases--that is, offenses committed prior to 1996.
So, what about the years since Kirkland was released from prison? In 2005, he was charged with rape and aggravated burglary. But he went to trial, and a jury found him not guilty. I'm unwilling to fault "the system" for that. In 2007, he was twice charged with crimes. The first time, he was charged with two counts of kidnapping, inducing panic, and endangering children. This is where Bronson jumps the shark:
A trio of commentators have emerged today to use this week's events as an opportunity to raise the possibility that systemic failures in the criminal justice process paved the way for Esme's death. But the Enquirer editorial board, Peter Bronson, and several members of City Council all seem prone to histrionics, exaggeration, and outright falsehoods. So let's see if we can clarify the question they all raise: Why was Kirkland free?
The Enquirer reports that Kirkland was convicted in 1987 of killing his girlfriend and then setting fire to her body. That's obviously a horrible, horrible offense, and perhaps a foreshadowing of the most recent allegations against him. He was sentenced to serve 7 to 25 years in prison. He served 16, and then was paroled. From the editorial board:
Convicted of that killing, he received a 7-25 year sentence, which seems a light sentence given the grisly details of the case. He was paroled in 2003 and released from probation 13 months later. That's one big crack [in the system] - 16 years for intentionally immolating someone.
Should Kirkland have been paroled in 2003? I don't know. I wasn't at the parole hearing. I don't know what influenced the parole board to let him go. (The fact that he spent 16 years in prison for an offense committed while he was a teenager was probably considered by the board.) But this is why Ohio sentencing law changed in the mid-1990's in favor of "truth in sentencing." We don't want parole board members deciding how long a defendant should serve; that's a judge's job. These kinds of indefinite sentences no longer exist. When we hear about people being released early for parole, we're hearing about "old law" cases--that is, offenses committed prior to 1996.
So, what about the years since Kirkland was released from prison? In 2005, he was charged with rape and aggravated burglary. But he went to trial, and a jury found him not guilty. I'm unwilling to fault "the system" for that. In 2007, he was twice charged with crimes. The first time, he was charged with two counts of kidnapping, inducing panic, and endangering children. This is where Bronson jumps the shark:
But he wound up serving just 115 days on two counts of unlawful restraint. One of the charges that was dropped was "endangering children."
Usually, when people talk about charges being "dropped," they're referring to the prosecution dismissing charges. But that's not what happened here. Instead, Kirkland went to trial and was acquitted of endangering children and inducing panic. He was found not guilty of kidnapping, but
guilty of the lesser included offense of unlawful restraint, a misdemeanor.
Later that year, he was arrested for importuning, a felony, and public indecency, a misdemeanor. Again, Kirkland went to trial. He was acquitted of public indecency, but convicted of importuning. And this is where the Enquirer editorial board's handle on the facts goes awry:
He went back to jail for about a year before being paroled again - another crack.
Umm, wrong. He didn't serve his sentence in "jail," he spent it in prison (at least the part of it he hadn't already served by the time his case went to trial). What's more, he was sentenced to the maximum sentence: one year. He was also classified as a sex offender as a result of that conviction. He was not released on parole--parole no longer exists. Instead, once he served his full sentence, he was placed on post-release control, or PRC. PRC is supervised by the Adult Parole Authority and begins after certain offenders have completed their sentence. It is not an alternative to prison. When an offender violates the terms of PRC, the Parole Authority has the option of returning him to prison for up to nine months or half of his prison term, whichever is greater.
And now we get to Kirkland's recent conduct and abode. While on PRC, he was ordered to live at the Volunteers of America halfway house. City Council has complained in the past (and does so again today) of sex offenders being relocated to Cincinnati to live at the VOA. But this isn't what happened in this case. Kirkland was from Cincinnati. Once he served the one-year sentence, he would have returned to Cincinnati. While our leaders are right to be concerned about Cincinnati becoming a "dumping ground" for sex offenders from across the state, that trend did not impact the Kirkland case. And wasn't placing him in the VOA, under at least marginal supervision, a better choice than no placement at all? City Council members question the propriety of permitting a "serial killer" to reside at the VOA, but that's not quite right. He wasn't known to be a serial killer at the time of his placement, and he wasn't being supervised in connection with the 1987 murder any longer.
Everyone raises a valid point about the VOA's ridiculously bad judgment back on February 29th, when Kirkland apparently was expelled from the facility for fighting with a fellow resident. It appears that the VOA didn't notify Kirkland's parole officer for three days that Kirkland had been kicked out. I cannot fathom why. The parole officer would have immediately reached out to Kirkland, and if he couldn't have found him, a warrant would have issued. Did those three days make a difference? We'll never know.
Cases like this rightly cause us to evaluate and re-evaluate our criminal justice system and its strengths and weaknesses. But such evaluation should be based on facts, not half-truths and fear.
Sorry for the long post.
Why Are There Two Convention Centers?
Instead of discussing combining convention bureaus, I wonder why the Sharonville convention center exists? Why on Earth would it expand? Who would ever want to have a convention there? If you want a small trade shows that feeds on local businesses/residents, OK, I can maybe see that, but who would travel on purpose to Sharonville for a convention, seriously? Gun Show, yeah, out of town convention, no.
GOP Still Hates the City
When you can't field more than 5 candidates for Cincinnati City Council it is clear your party either just doesn't care about the city or just down right hates it and cares only about the burbs. There are months ahead before candidates have to collect enough signatures and the local GOP is done endorsing. Sure, if you want to actually be a winning candidate, you need to be raising money now to have a reasonable chance, but not everyone has a chance anyway. Major political parties that are serious about a political race actually play to win it. The GOP I contend, at least those I'll label "the powers that be," would like to see the city fail, much like many want to see President Obama fail. Those living in the suburbs, the money base for most things GOP in the area, are not inclined to fund anything in the City, even a GOP candidate. Sure a few might, but most don't care to fund their own local township races, so the city is like a foreign political county.
No, I am not saying all Republicans want the city to fail, just those with the power. Those with the power would rather see the city slide into the river so attention and power and federal funding for the area could be reentered in the burbs. That would build up their power more, which yeah, is the goal of nearly every person ever labeled as part of the "powers that be."
I will applaud all 5 of the GOP endorsed candidates for City Council: Leslie Ghiz, Chris Monzel, George Zamary, Charlie Winburn, and Amy Murry. All I believe care about the city and in ways I may not agree with, want the city to succeed. Yes, that even goes for Charlie Winburn!
All of that said, sure there is a method to a short slate. When you want to try and gain a seat or two, then a short slate is logical plan to get you there. That hurts in the long run. You don't build up a big enough bench, which is a massive GOP problem right now that shows no signs of changing.
No, I am not saying all Republicans want the city to fail, just those with the power. Those with the power would rather see the city slide into the river so attention and power and federal funding for the area could be reentered in the burbs. That would build up their power more, which yeah, is the goal of nearly every person ever labeled as part of the "powers that be."
I will applaud all 5 of the GOP endorsed candidates for City Council: Leslie Ghiz, Chris Monzel, George Zamary, Charlie Winburn, and Amy Murry. All I believe care about the city and in ways I may not agree with, want the city to succeed. Yes, that even goes for Charlie Winburn!
All of that said, sure there is a method to a short slate. When you want to try and gain a seat or two, then a short slate is logical plan to get you there. That hurts in the long run. You don't build up a big enough bench, which is a massive GOP problem right now that shows no signs of changing.
Monday, March 09, 2009
CincyFringe 2009 Line Up Announced
The 6th annual Cincinnati Fringe Festival has announced it's line up.
The festival runs May 26th through June 6th. More details are here from the Enquirer.
For the 3rd year in a row, TheConveyor.com is planning on wall to wall, beer to beer, and play to play coverage of festival. We'll have reviews and more here. The Fringe Blog will be back again and so will the overabundance of cheeky commentary from Fringe participants.
Visual and Film Fringe are still accepting applications until March 27th, so get full details at www.cincyfringe.com.
The festival runs May 26th through June 6th. More details are here from the Enquirer.
For the 3rd year in a row, TheConveyor.com is planning on wall to wall, beer to beer, and play to play coverage of festival. We'll have reviews and more here. The Fringe Blog will be back again and so will the overabundance of cheeky commentary from Fringe participants.
Visual and Film Fringe are still accepting applications until March 27th, so get full details at www.cincyfringe.com.
Friday, March 06, 2009
Bigotry in Butler County
Yes, the headline is a broken record, but adoption policy in Butler County discriminates against Gays. Guess who the bigot is: Mike Fox, former Butler County Commissioner. I guess he needs more bad press to counter the bad press his scandals got him. What better way to rally support than to tap into a subtle bigotry.
Thursday, March 05, 2009
'Round The Cinciblogosphere: End of an Era
Well, Jean-Robert at Pigall's is no more. I'm fortunate to have eaten there once, for a three-course lunch a few years ago. I remember distinctly two things: the best scallops I've ever had, and my only experience with purple potatoes (mmm....potatoes and purple, together).
I kept waiting for Griff to invite Jack, Julie, and me out to Pigall's to mark the closing but alas, the perks of blogging aren't what they used to be.....so I've had to settle for reading about other bloggers' last meals there.
Kate's random thoughts on a final four-star meal are here. Graham ate at Jean Robert's this week (okay...it was a couple weeks ago, but I'm trying to get his blog's name into the sentence). And go read which of Jean Robert's morsels got into Liz's belly here (yes, Liz blew it in her review of Adriatico's, but her terrific recounting of her Pigall's meal--as well as her great story on a foray into a sort of extreme-cuisine-meets-fine-dining-purgatory--has caused me to stop frothing at the mouth.
I'm sorry to see the restaurant go. I'm not sure how such restaurants fit into markets outside of New York and Los Angeles, particularly in the present economy. But such restaurants remind us why the phrase "culinary art" exists. Jean Robert, when he's at his finest, isn't just dishing up sustenance; he's creating art and memories. And I hope that downtown restaurant gets another opportunity to support a four-star dining experience).
I kept waiting for Griff to invite Jack, Julie, and me out to Pigall's to mark the closing but alas, the perks of blogging aren't what they used to be.....so I've had to settle for reading about other bloggers' last meals there.
Kate's random thoughts on a final four-star meal are here. Graham ate at Jean Robert's this week (okay...it was a couple weeks ago, but I'm trying to get his blog's name into the sentence). And go read which of Jean Robert's morsels got into Liz's belly here (yes, Liz blew it in her review of Adriatico's, but her terrific recounting of her Pigall's meal--as well as her great story on a foray into a sort of extreme-cuisine-meets-fine-dining-purgatory--has caused me to stop frothing at the mouth.
I'm sorry to see the restaurant go. I'm not sure how such restaurants fit into markets outside of New York and Los Angeles, particularly in the present economy. But such restaurants remind us why the phrase "culinary art" exists. Jean Robert, when he's at his finest, isn't just dishing up sustenance; he's creating art and memories. And I hope that downtown restaurant gets another opportunity to support a four-star dining experience).
CPS School Board: Not At The Head Of The Class
Dumb, dumb, dumb. That's the only way to describe the continued failure of the Cincinnati school board to respect the spirit, intent, and (frankly) the text of the Public Records Act. As we noted last month, CPS hatched a scheme to shield the names of applicants for the vacant superintendent position from public scrutiny: the board rented a post office box for the reception of applications, and won't open them until March 16, at which time it will attempt to hire someone as quickly as possible.
CPS has held its ground. And so has the Enquirer, which today filed a lawsuit in the Hamilton County Court of Appeals to force the board to release the applications in response to Public Records Act requests.
I recognize that there is at least one good reason to permit applicants' names to be immune from public disclosure: good candidates might be discouraged from applying given that there's a guarantee that their present employers will learn they're seeking work elsewhere. But the only way to fix that is for the General Assembly to change the statute.
Besides being fairly illegal, the board's decision is also bad practice. Trying to compress the consideration of applications for its top job into as little time as possible leaves them with a wide margin for error. Moving into a time period in which (a) money will be tight and (b) the state's educational system may undergo fundamental changes, the board needs a strong, competent leader. But its process is making it less likely that one will be hired.
The Enquirer is represented by Jack Greiner, a partner at Graydon Head & Ritchey. It looks like Mr. Greiner has been practicing for about 25 years. My guess is that he bills at a rate of $350 or $400 per hour (perhaps more). Assuming I'm correct and the Enquirer wins its suit, CPS will be on the hook for his fees (the Public Records Act contains a "fee-shifting" provision, permitting a successful litigant to collect attorney's fees and costs).
HamCo GOP Chair Alex Triantafilou says his party will field "qualified" candidates in the next school board race. Given the current board's short-sightedness on this rather easy issue, I'll be leaning heavily towards casting my ballot for some "R's" in those races.
Finally, for those of you who were wondering why the lawsuit was filed in the appeals court, rather than in the Common Pleas court (our trial level courts): it's because of the nature of the suit. The Enquirer is seeking a writ of mandamus--essentially, an order compelling a government official to obey the law. Ohio law says that such suits, unlike ordinary suits for damages, may originate in any court--the applicable Common Pleas Court, a Court of Appeals, or even the Ohio Supreme Court.
CPS has held its ground. And so has the Enquirer, which today filed a lawsuit in the Hamilton County Court of Appeals to force the board to release the applications in response to Public Records Act requests.
I recognize that there is at least one good reason to permit applicants' names to be immune from public disclosure: good candidates might be discouraged from applying given that there's a guarantee that their present employers will learn they're seeking work elsewhere. But the only way to fix that is for the General Assembly to change the statute.
Besides being fairly illegal, the board's decision is also bad practice. Trying to compress the consideration of applications for its top job into as little time as possible leaves them with a wide margin for error. Moving into a time period in which (a) money will be tight and (b) the state's educational system may undergo fundamental changes, the board needs a strong, competent leader. But its process is making it less likely that one will be hired.
The Enquirer is represented by Jack Greiner, a partner at Graydon Head & Ritchey. It looks like Mr. Greiner has been practicing for about 25 years. My guess is that he bills at a rate of $350 or $400 per hour (perhaps more). Assuming I'm correct and the Enquirer wins its suit, CPS will be on the hook for his fees (the Public Records Act contains a "fee-shifting" provision, permitting a successful litigant to collect attorney's fees and costs).
HamCo GOP Chair Alex Triantafilou says his party will field "qualified" candidates in the next school board race. Given the current board's short-sightedness on this rather easy issue, I'll be leaning heavily towards casting my ballot for some "R's" in those races.
Finally, for those of you who were wondering why the lawsuit was filed in the appeals court, rather than in the Common Pleas court (our trial level courts): it's because of the nature of the suit. The Enquirer is seeking a writ of mandamus--essentially, an order compelling a government official to obey the law. Ohio law says that such suits, unlike ordinary suits for damages, may originate in any court--the applicable Common Pleas Court, a Court of Appeals, or even the Ohio Supreme Court.
Wednesday, March 04, 2009
Imports At It Again
At cincinnati imports (someday soon I'll find out why "liz" is so opposed to capitalization), Liz announces a couple of upcoming events. On March 21, the plan is to head out to Cincinnati Gardens to cheer as Lauren (known by her rabid fans as Miss Print) and the Cincinnati Rollergirls as they take on the Hard Knox Rollergirls in the season opener.
Plans are also in the works for a Happy Hour on April 1st. No location has been announced.
I'm somewhat embarassed that I never posted on the imports' first Happy Hour. It was a great event! I was thrilled to meet some of the best bloggers in town. Liz and Lauren have pictures here. This last one is important: it memorializes the historic first meeting between Griff, on the right, and myself (note the somewhat awed look in my eyes). That's right, Griff and I had never met before that night. Anyhow, the event was fun enough that I'm looking forward to the April Fool's Day event. And it's so fun to hang with that crowd that I just might have to figure out what a twitter is and crash the next tweet-up....
Oh---for those of you who are concerned by the picture: the pornstache was a very, very, very, short-lived experiment in facial hair, and ended shortly after that night.
Plans are also in the works for a Happy Hour on April 1st. No location has been announced.
I'm somewhat embarassed that I never posted on the imports' first Happy Hour. It was a great event! I was thrilled to meet some of the best bloggers in town. Liz and Lauren have pictures here. This last one is important: it memorializes the historic first meeting between Griff, on the right, and myself (note the somewhat awed look in my eyes). That's right, Griff and I had never met before that night. Anyhow, the event was fun enough that I'm looking forward to the April Fool's Day event. And it's so fun to hang with that crowd that I just might have to figure out what a twitter is and crash the next tweet-up....
Oh---for those of you who are concerned by the picture: the pornstache was a very, very, very, short-lived experiment in facial hair, and ended shortly after that night.
Tuesday, March 03, 2009
Bockfest Starts This Friday!
It is that time of year again. Bockfest starts Friday March 6th and runs through Sunday the 8th. Friday is the big night with events starting at 6 PM with the Parade at Arnold's up to Main Street. Best viewing will likley be around 12th and Main, where the blessing of the beer takes place after the parade. Get your holy water burns at no extra cost!
Jake Speed takes the stage at 9PM at Bockfest Hall (Formerly Jefferson Hall).
Other places you may find me will be Arnold's and Grammer's, which are easy to get to via the free Bockfest shuttle!
Admission is free, so come on down!
Sunday, March 01, 2009
Ignoring the "Go Directly To Jail" Card
We've all heard by now of the lack of space in the jails in Hamilton County. Most of you have heard that the sheriff has initiated a sentence deferral program, whereby certain offenders are told to come back at a later day to serve a sentence of incarceration. Today's Enquirer reveals something that was fairly predictable: defendants aren't necessarily reporting as ordered. And according to the Enquirer, there's nothing that can be done to penalize them for remaining at large.
The situation is of some concern (but probably not as alarming as the Enquirer makes it out to be) to me. Yes, I'm a defense attorney and I'm never happy when someone is sentenced to jail--every jail sentence represents, to me, some form of societal failure or detriment. But I'm also a member of this community and a realist: sometimes, jail is the last, best option for punishment and deterrence. I think there are a couple things that could be done to encourage people to show up to serve a deferred sentence. But before I offer my suggestions, let's clear up some potential misconceptions about the Hamilton County criminal justice system.
First, it's extremely difficult to be sentenced to incarceration for a misdemeanor offense in this county. It happens in one of two situations: either the offense is particular violent (an assault or domestic violence conviction that goes beyond the "garden variety" version of those offenses), or the defendant is a recidivist. In the latter circumstance, sometimes we're talking about someone who was placed on probation and is now on a second or third probation violation, or someone who has multiple, close-in-time convictions similar to the one for which s/he is now being sentenced.
Second, the Enquirer reports deferral is only for "non-violent" offenders. If this is true today, it has not always been true over the past three months. Also, space is especially tight for female offenders. (My understanding is that this is because when Queensgate closed, the first floor at 1617 Reading Road was converted to a men's jail, decreasing the number of beds for women system-wide.)
Third, right now, judges don't always know whose sentence will be deferred and who will go in immediately. After the court imposes sentence, the defendant is taken from the courtroom by the criminal bailiff to the holding cell on the sixth floor of the courthouse, where s/he is thoroughly patted down. From there, s/he is taken across the street (via a connecting bridge) to the Justice Center, where s/he is processed. S/he is then informed if his or her sentence is being deferred.
So how do we get convicted offenders to show up to serve their jail sentences? There is no real "carrot" involved here; instead, the justice system has to find a "stick." I think there are four ways judges and prosecutors can influence defendants' behavior post-sentencing but pre-incarceration:
1. Charging escape. I haven't researched the caselaw on this, but my quick reading of Ohio Revised Code 2921.34 make me believe people who miss their deferral date could be charged with escape. This is because that crime applies to one who "purposely fail[s] to return to detention . . . following temporary leave granted for a specific purpose or limited period." If the problem is that the "temporary leave" is granted by the sheriff rather than the court, then the court could, upon request of the sheriff, order the temporary leave (in other words, the court "furloughs" the defendant). Of course, in this scenario, escape is a misdemeanor offense (meaning that the defendant would serve his time in the county jail rather than prison), so this could further exacerbate the space shortage, but the possibility of an additional six-month sentence is strong incentive to show up as ordered by the sheriff.
2. Charging contempt. As part of sentences of incarceration, judges could begin ordering defendants to comply with all sheriff-imposed reporting requirements (e.g., calling or coming in on the deferred sentence date). If the defendant fails to do this, the court could then impose an additional sentence for contempt. Again, this requires more utilization of bed space to initiate and more resources (this would be "indirect" contempt, so a hearing would be required). But the hope is that the mere possibility of additional incarceration would deter individuals from skipping out on their sentences.
3. Detail eligibility. If you've been to the Justice Center or the courthouse, you've no doubt seen inmates wandering about, seemingly unsupervised, collecting trash, mopping floors, and performing other custodial functions. These men are on "work details," for which they typically get two or three days of credit for every one day of detail work. (You generally hear this called "2-for-1" or "3-for-1.") This means someone who is sentenced to six months in jail can get out in as little as six months, or even less. Judges can make defendants ineligible for details, but rarely do so. The sheriff should make any individual who fails to report as ordered ineligible for work details that decrease the amount of time to be served. (I'd suggest the same thing for treatment programs that make mitigation by a judge likely, but (a) we should never make someone ineligible for treatment, and (b) last I knew, sentences were not being deferred for individuals who were serving their time in programs like men's extended treatment.)
4. Conditional sentences. This requires the judge and the sheriff to work together, so a judge will know, at the time of sentencing, whether a defendant's sentence will be deferred by the sheriff. If the sentence is to be deferred, the judge could announce a conditional sentence. For instance, if the charge is a first-degree misdemeanor (carrying a possible 180 days in jail) and the court wants to impose a 90-day sentence, if the sentence is to be deferred then the court could announce its intent to impose 90 days and instruct the defendant to report back to the courtroom for actual sentencing and surrender at the end of the deferral. The court would instruct the defendant that if s/he fails to appear for sentence, the court will impose the maximum 180-day sentence instead of the 90 promised.
No one would describe me as a "law-and-order" guy. But failing to obey a court order--like a sentence--should have consequences. My suggestions assume, of course, that judges are using incarceration only where appropriate: for particularly brutal crimes or as the last sentencing option, only when a defendant has repeatedly demonstrated, over time, non-amenability to treatment or other, more rehabilitative opportunities.
The situation is of some concern (but probably not as alarming as the Enquirer makes it out to be) to me. Yes, I'm a defense attorney and I'm never happy when someone is sentenced to jail--every jail sentence represents, to me, some form of societal failure or detriment. But I'm also a member of this community and a realist: sometimes, jail is the last, best option for punishment and deterrence. I think there are a couple things that could be done to encourage people to show up to serve a deferred sentence. But before I offer my suggestions, let's clear up some potential misconceptions about the Hamilton County criminal justice system.
First, it's extremely difficult to be sentenced to incarceration for a misdemeanor offense in this county. It happens in one of two situations: either the offense is particular violent (an assault or domestic violence conviction that goes beyond the "garden variety" version of those offenses), or the defendant is a recidivist. In the latter circumstance, sometimes we're talking about someone who was placed on probation and is now on a second or third probation violation, or someone who has multiple, close-in-time convictions similar to the one for which s/he is now being sentenced.
Second, the Enquirer reports deferral is only for "non-violent" offenders. If this is true today, it has not always been true over the past three months. Also, space is especially tight for female offenders. (My understanding is that this is because when Queensgate closed, the first floor at 1617 Reading Road was converted to a men's jail, decreasing the number of beds for women system-wide.)
Third, right now, judges don't always know whose sentence will be deferred and who will go in immediately. After the court imposes sentence, the defendant is taken from the courtroom by the criminal bailiff to the holding cell on the sixth floor of the courthouse, where s/he is thoroughly patted down. From there, s/he is taken across the street (via a connecting bridge) to the Justice Center, where s/he is processed. S/he is then informed if his or her sentence is being deferred.
So how do we get convicted offenders to show up to serve their jail sentences? There is no real "carrot" involved here; instead, the justice system has to find a "stick." I think there are four ways judges and prosecutors can influence defendants' behavior post-sentencing but pre-incarceration:
1. Charging escape. I haven't researched the caselaw on this, but my quick reading of Ohio Revised Code 2921.34 make me believe people who miss their deferral date could be charged with escape. This is because that crime applies to one who "purposely fail[s] to return to detention . . . following temporary leave granted for a specific purpose or limited period." If the problem is that the "temporary leave" is granted by the sheriff rather than the court, then the court could, upon request of the sheriff, order the temporary leave (in other words, the court "furloughs" the defendant). Of course, in this scenario, escape is a misdemeanor offense (meaning that the defendant would serve his time in the county jail rather than prison), so this could further exacerbate the space shortage, but the possibility of an additional six-month sentence is strong incentive to show up as ordered by the sheriff.
2. Charging contempt. As part of sentences of incarceration, judges could begin ordering defendants to comply with all sheriff-imposed reporting requirements (e.g., calling or coming in on the deferred sentence date). If the defendant fails to do this, the court could then impose an additional sentence for contempt. Again, this requires more utilization of bed space to initiate and more resources (this would be "indirect" contempt, so a hearing would be required). But the hope is that the mere possibility of additional incarceration would deter individuals from skipping out on their sentences.
3. Detail eligibility. If you've been to the Justice Center or the courthouse, you've no doubt seen inmates wandering about, seemingly unsupervised, collecting trash, mopping floors, and performing other custodial functions. These men are on "work details," for which they typically get two or three days of credit for every one day of detail work. (You generally hear this called "2-for-1" or "3-for-1.") This means someone who is sentenced to six months in jail can get out in as little as six months, or even less. Judges can make defendants ineligible for details, but rarely do so. The sheriff should make any individual who fails to report as ordered ineligible for work details that decrease the amount of time to be served. (I'd suggest the same thing for treatment programs that make mitigation by a judge likely, but (a) we should never make someone ineligible for treatment, and (b) last I knew, sentences were not being deferred for individuals who were serving their time in programs like men's extended treatment.)
4. Conditional sentences. This requires the judge and the sheriff to work together, so a judge will know, at the time of sentencing, whether a defendant's sentence will be deferred by the sheriff. If the sentence is to be deferred, the judge could announce a conditional sentence. For instance, if the charge is a first-degree misdemeanor (carrying a possible 180 days in jail) and the court wants to impose a 90-day sentence, if the sentence is to be deferred then the court could announce its intent to impose 90 days and instruct the defendant to report back to the courtroom for actual sentencing and surrender at the end of the deferral. The court would instruct the defendant that if s/he fails to appear for sentence, the court will impose the maximum 180-day sentence instead of the 90 promised.
No one would describe me as a "law-and-order" guy. But failing to obey a court order--like a sentence--should have consequences. My suggestions assume, of course, that judges are using incarceration only where appropriate: for particularly brutal crimes or as the last sentencing option, only when a defendant has repeatedly demonstrated, over time, non-amenability to treatment or other, more rehabilitative opportunities.
Hook Us Up, Kroger: An Open Letter to Mr. Dillon
David Dillon
CEO, The Kroger Company
1014 Vine Street
Cincinnati, OH 45202
RE: Downtown Cincinnati
Dear Mr. Dillon:
I write concerning the critical gap in the grocery market in downtown Cincinnati. As a downtown resident and worker, this is of serious concern to me. But more importantly, the issue raises a pressing business opportunity for your company.
Kroger has regularly been criticized for its only downtown/Over-the-Rhine store at 1420 Vine Street. We've even done our fair share of lambasting at the Cincinnati Blog. We certainly appreciate the company's efforts to revitalize the store during a few years ago. Ultimately, though, the store's footprint is simply too small for the store to one that your company can be proud to have in the shadow of your corporate headquarters.
A few days ago, because I was "in the neighborhood," I made my first visit to your "Fresh Fare" store in Kenwood. I'd never been to a "Fresh Fare" Kroger; I was impressed. Comparing the Vine Street Kroger to the Kenwood store is like comparing a summer weekend festival's attractions to those at King's Island. Wow. Wow, wow, wow.
The people of downtown and Over-the-Rhine deserve a quality grocery store from the grocery company so closely identified with the Queen City. But that's an argument that's been made for a long time, and one that repeatedly falls on deaf ears in the Kroger hierarchy. So let's focus on why Kroger's interests are served by an expanded downtown location.
More people live downtown and in Over-the-Rhine than did a few years ago. And while the Vine Street store is sufficient if we need a few things, it's not good enough for weekly shopping. That means that people who can do so drive outside of downtown to buy groceries. But once I'm leaving downtown, the chance that I go to Kroger (either to Bellevue or Hyde Park, most likely) is only one-in-three, at best. I might go to Meijer. I might go to Bigg's. Or maybe, I'll get wild and crazy and head all the way out to Jungle Jim's.
There's land available for a Fresh Fare Kroger. There's a big parking lot on the eastern edge of downtown known as "Broadway Commons." The owners don't seem really married to hanging onto the property. They wanted to sell to permit the building of the baseball and football stadia there. More recently, they were hoping a casino company would buy them out. I'm sure they'd sell to Kroger.
Think about the business a Fresh Fare store would do at that location. New residential buildings are opening all time in downtown and OTR. Within the next half-decade, residents will start occupying housing in the Banks. Kroger should already have a store in place by then; it's much easier to attract business from those looking to develop habits, rather than to change pre-existing habits--which is what will happen if Kroger continues to take a wait-and-see approach to downtown residency.
But it's not just your neighbors who would frequent a Fresh Fare store. Think about all the people who, on their way home from downtown jobs, would stop in your store to pick up dinner. Broadway Commons is on the way to I-71 from downtown. It's perfect!
I realize it's tough to think about expansion in this economy. But downtown and OTR is one of the few areas to which people continue to relocate. Kroger should take advantage of this, rewarding both itself with lots of new business and longtime OTR residents who have steadfastly patronized the vastly inferior OTR store out of loyalty to your company.
Kroger is a great Cincinnati company. It should have a great Cincinnati location.
Sincerely,
Donald Caster
CEO, The Kroger Company
1014 Vine Street
Cincinnati, OH 45202
RE: Downtown Cincinnati
Dear Mr. Dillon:
I write concerning the critical gap in the grocery market in downtown Cincinnati. As a downtown resident and worker, this is of serious concern to me. But more importantly, the issue raises a pressing business opportunity for your company.
Kroger has regularly been criticized for its only downtown/Over-the-Rhine store at 1420 Vine Street. We've even done our fair share of lambasting at the Cincinnati Blog. We certainly appreciate the company's efforts to revitalize the store during a few years ago. Ultimately, though, the store's footprint is simply too small for the store to one that your company can be proud to have in the shadow of your corporate headquarters.
A few days ago, because I was "in the neighborhood," I made my first visit to your "Fresh Fare" store in Kenwood. I'd never been to a "Fresh Fare" Kroger; I was impressed. Comparing the Vine Street Kroger to the Kenwood store is like comparing a summer weekend festival's attractions to those at King's Island. Wow. Wow, wow, wow.
The people of downtown and Over-the-Rhine deserve a quality grocery store from the grocery company so closely identified with the Queen City. But that's an argument that's been made for a long time, and one that repeatedly falls on deaf ears in the Kroger hierarchy. So let's focus on why Kroger's interests are served by an expanded downtown location.
More people live downtown and in Over-the-Rhine than did a few years ago. And while the Vine Street store is sufficient if we need a few things, it's not good enough for weekly shopping. That means that people who can do so drive outside of downtown to buy groceries. But once I'm leaving downtown, the chance that I go to Kroger (either to Bellevue or Hyde Park, most likely) is only one-in-three, at best. I might go to Meijer. I might go to Bigg's. Or maybe, I'll get wild and crazy and head all the way out to Jungle Jim's.
There's land available for a Fresh Fare Kroger. There's a big parking lot on the eastern edge of downtown known as "Broadway Commons." The owners don't seem really married to hanging onto the property. They wanted to sell to permit the building of the baseball and football stadia there. More recently, they were hoping a casino company would buy them out. I'm sure they'd sell to Kroger.
Think about the business a Fresh Fare store would do at that location. New residential buildings are opening all time in downtown and OTR. Within the next half-decade, residents will start occupying housing in the Banks. Kroger should already have a store in place by then; it's much easier to attract business from those looking to develop habits, rather than to change pre-existing habits--which is what will happen if Kroger continues to take a wait-and-see approach to downtown residency.
But it's not just your neighbors who would frequent a Fresh Fare store. Think about all the people who, on their way home from downtown jobs, would stop in your store to pick up dinner. Broadway Commons is on the way to I-71 from downtown. It's perfect!
I realize it's tough to think about expansion in this economy. But downtown and OTR is one of the few areas to which people continue to relocate. Kroger should take advantage of this, rewarding both itself with lots of new business and longtime OTR residents who have steadfastly patronized the vastly inferior OTR store out of loyalty to your company.
Kroger is a great Cincinnati company. It should have a great Cincinnati location.
Sincerely,
Donald Caster
Wednesday, February 25, 2009
State of the City
I attended Mayor Mark Mallory's "State of the City" address this evening. (Text here, courtesy the Enquirer.) I'm not sure how the speech will read, but I can tell you that the mayor's delivery made clear that his top priority this year is the streetcar proposal.
Mayor Mallory isn't typically a fire-and-brimstone kind of speaker, but he got downright fiery when he talked about the streetcar. In fact, that was probably the only thing he got fiery about. He noted the development and investment streetcars brought in Tampa, Charlotte, and Seattle, and insisted that the "naysayers" not be permitted to "derail" the project.
There was also an interesting moment towards the end of his address. Mallory spent much of his speech recognizing and thanking various community leaders. In discussing the uptick of convention business last year, Mallory thanked Chris Smitherman for his leadership with respect to last summer's national NAACP convention. While the mayor was, I think, trying to be gracious to the man who has very recently become one of his most outspoken critics, it was clear that the audience wasn't sure how to respond. While the other individuals Mallory mentioned got rounds of applause that were fairly robust, the response to the mention of Smitherman was fairly tepid.
All in all, a good night for Mallory, I think. (And by the way, he affirmed that the "first" phase of the streetcar plan is to include the uptown connector.)
A postscript: I just saw on the late news that Monzel, who delivered the "Republican response" (or just a response?), took the opportunity to reject the streetcar proposal. It's not a new position for him, but makes me wonder: has the HamCo GOP officially staked out an anti-streetcar position? As our regular readers know, I remain ambivalent about a streetcar plan, but would be surprised if the GOP were going to foist an anti-streetcar platform on its five candidates this fall, as I'm not sure it will help them. (And Republican Councilmember Ghiz, if I recall correctly, voted for the streetcar.) And if the party doesn't have a position, then something's amiss: if Monzel was giving a truly "Republican response," then why would he set out his personal position, rather than the party's positions?
Interestingly, Jane Pendegrast suggests that Monzel was to speak for the GOP (quoting Chair Alex Triantafilou as saying that the "opposite party" hadn't given such a response in a while), and Triantafilou refers to the remarks both as "Chris Monzel's response" and "our response." So for whom was Councilman Monzel speaking this evening: just himself, or the entire HamCo GOP?
Mayor Mallory isn't typically a fire-and-brimstone kind of speaker, but he got downright fiery when he talked about the streetcar. In fact, that was probably the only thing he got fiery about. He noted the development and investment streetcars brought in Tampa, Charlotte, and Seattle, and insisted that the "naysayers" not be permitted to "derail" the project.
There was also an interesting moment towards the end of his address. Mallory spent much of his speech recognizing and thanking various community leaders. In discussing the uptick of convention business last year, Mallory thanked Chris Smitherman for his leadership with respect to last summer's national NAACP convention. While the mayor was, I think, trying to be gracious to the man who has very recently become one of his most outspoken critics, it was clear that the audience wasn't sure how to respond. While the other individuals Mallory mentioned got rounds of applause that were fairly robust, the response to the mention of Smitherman was fairly tepid.
All in all, a good night for Mallory, I think. (And by the way, he affirmed that the "first" phase of the streetcar plan is to include the uptown connector.)
A postscript: I just saw on the late news that Monzel, who delivered the "Republican response" (or just a response?), took the opportunity to reject the streetcar proposal. It's not a new position for him, but makes me wonder: has the HamCo GOP officially staked out an anti-streetcar position? As our regular readers know, I remain ambivalent about a streetcar plan, but would be surprised if the GOP were going to foist an anti-streetcar platform on its five candidates this fall, as I'm not sure it will help them. (And Republican Councilmember Ghiz, if I recall correctly, voted for the streetcar.) And if the party doesn't have a position, then something's amiss: if Monzel was giving a truly "Republican response," then why would he set out his personal position, rather than the party's positions?
Interestingly, Jane Pendegrast suggests that Monzel was to speak for the GOP (quoting Chair Alex Triantafilou as saying that the "opposite party" hadn't given such a response in a while), and Triantafilou refers to the remarks both as "Chris Monzel's response" and "our response." So for whom was Councilman Monzel speaking this evening: just himself, or the entire HamCo GOP?
CincyPAC on 55KRC
This past Sunday night City Talk Radio's 2nd half of the show included members of CincyPac and gave a basic overview of the organization. On the link you can find a podcast of the full show, including an interview with the team behind "Cooking with Caitlin," which according to the show will appear weekly on Fountain Square over the summer.
On CincyPac I am still not really sure of its purpose. Their website does list out a description. I don't know that it helps me understand the ultimate goal. If they are a PAC and are about raising money to elect candidates, then I get it. The mission then would be to get cash in into the campaigns of candidates who favor "YP issues". Getting money is hard business, but it is a focused goal that can be completed in many ways, but those methods are quantifiable.
If the organization is trying to be an issue advocacy group that has a social component, then I don't get it. I don't have a problem with that type of group, but that will open it up to a bureaucracy that will slow them down and likley hamper efforts to get people to give money to the PAC to then give to candidates. Where the problem may come in is when money comes into the PAC, what portion will be given to candidates and what portion will go to Issue Advocacy and the social component? I don't have a problem with trying to be more than one thing, I just want the goals to have a clear hierarchy. Who is going to get most of the contributions is a key element to know prior to giving a contribution.
The debate on what "YP issues" means is another big contention that is so very debatable. That hurts the group partially because it is a vague goal and one people are going to have a hard time wanting to support. PACs do better when they have one goal, where the reason for giving money is singular, like Emily's List. There is not a single YP issue to focus on, but there needs to be clearer message on the issues being considered, if getting money is the goal. A focused message will be the only way to get significant contributions.
On CincyPac I am still not really sure of its purpose. Their website does list out a description. I don't know that it helps me understand the ultimate goal. If they are a PAC and are about raising money to elect candidates, then I get it. The mission then would be to get cash in into the campaigns of candidates who favor "YP issues". Getting money is hard business, but it is a focused goal that can be completed in many ways, but those methods are quantifiable.
If the organization is trying to be an issue advocacy group that has a social component, then I don't get it. I don't have a problem with that type of group, but that will open it up to a bureaucracy that will slow them down and likley hamper efforts to get people to give money to the PAC to then give to candidates. Where the problem may come in is when money comes into the PAC, what portion will be given to candidates and what portion will go to Issue Advocacy and the social component? I don't have a problem with trying to be more than one thing, I just want the goals to have a clear hierarchy. Who is going to get most of the contributions is a key element to know prior to giving a contribution.
The debate on what "YP issues" means is another big contention that is so very debatable. That hurts the group partially because it is a vague goal and one people are going to have a hard time wanting to support. PACs do better when they have one goal, where the reason for giving money is singular, like Emily's List. There is not a single YP issue to focus on, but there needs to be clearer message on the issues being considered, if getting money is the goal. A focused message will be the only way to get significant contributions.
Tuesday, February 24, 2009
Supreme Court Decisions Not Always About "Politics"
A brief diversion from Cincinnati blogging for a moment of blawging.
Today, the Supreme Court decided United States v. Hayes, in which the Court was called upon to determine what Congress meant by "a misdemeanor crime of domestic violence." The facts are simple: in 1994, Randy Edward Hayes was convicted in a West Virginia court of battery. (In Ohio, we'd call it assault.) The victim was Hayes's wife. In 1996, Congress amended the Gun Control Act to make it unlawful for anyone convicted of a misdemeanor crime of domestic violence to own a firearm. And in 2004, Hayes was found to be in possession of a firearm and charged with violating 18 U.S.C. 922(g), a crime that carries a possible 10-year sentence.
Hayes's lawyers moved to dismiss the indictment. After all, he wasn't convicted of domestic violence--he was convicted of battery. But the district court construed the federal statute's definition of "crime of domestic violence" broadly, ruling that regardless of whether the crime of which Hayes was found guilty required proof of a domestic relationship, Hayes could be prosecuted under federal law if the federal government could prove (beyond a reasonable doubt) that the victim and Hayes shared a domestic relationship back in 1994.
Eventually, the case made its way to the US Supreme Court. I know what you're thinking. It's a criminal case. The "liberals" will bend over backwards to help him beat the rap. The "conservatives" will want to lock him up and throw away the key. A moderate or two will decide Hayes's fate. Because federal law is all about politics, right? Well, it's good you thought that, but you're wrong.
The Supreme Court voted 7-2 to uphold the conviction. The Court's decision was written by (wait for it) Justice Ginsburg. The two dissenters? Chief Justice Roberts and Justice Scalia. The majority concluded that Congress, when it wrote "crime of domestic violence," meant to include any crime that could be domestic violence, regardless of whether it was charged or prosecuted that way. The Chief Justice (with whom I agree) argued that such a construction strains logic. He also argued that since the statute is ambiguous, any doubt has to be resolved in favor of the defendant (a concept known as the rule of lenity).
So for those of you (on either the left or the right) who insist that Supreme Court decision-making is just politics in another arena, remember cases like this. While the justices no doubt have ideological views that shape their rulings, they are, in fact, striving to uphold the rule of law, not just to further a particular political cause.
And finally: don't wring your hands too much over Randy Hayes's fate. He wasn't sent to prison; instead, the judge sentenced him to five years' probation.
Today, the Supreme Court decided United States v. Hayes, in which the Court was called upon to determine what Congress meant by "a misdemeanor crime of domestic violence." The facts are simple: in 1994, Randy Edward Hayes was convicted in a West Virginia court of battery. (In Ohio, we'd call it assault.) The victim was Hayes's wife. In 1996, Congress amended the Gun Control Act to make it unlawful for anyone convicted of a misdemeanor crime of domestic violence to own a firearm. And in 2004, Hayes was found to be in possession of a firearm and charged with violating 18 U.S.C. 922(g), a crime that carries a possible 10-year sentence.
Hayes's lawyers moved to dismiss the indictment. After all, he wasn't convicted of domestic violence--he was convicted of battery. But the district court construed the federal statute's definition of "crime of domestic violence" broadly, ruling that regardless of whether the crime of which Hayes was found guilty required proof of a domestic relationship, Hayes could be prosecuted under federal law if the federal government could prove (beyond a reasonable doubt) that the victim and Hayes shared a domestic relationship back in 1994.
Eventually, the case made its way to the US Supreme Court. I know what you're thinking. It's a criminal case. The "liberals" will bend over backwards to help him beat the rap. The "conservatives" will want to lock him up and throw away the key. A moderate or two will decide Hayes's fate. Because federal law is all about politics, right? Well, it's good you thought that, but you're wrong.
The Supreme Court voted 7-2 to uphold the conviction. The Court's decision was written by (wait for it) Justice Ginsburg. The two dissenters? Chief Justice Roberts and Justice Scalia. The majority concluded that Congress, when it wrote "crime of domestic violence," meant to include any crime that could be domestic violence, regardless of whether it was charged or prosecuted that way. The Chief Justice (with whom I agree) argued that such a construction strains logic. He also argued that since the statute is ambiguous, any doubt has to be resolved in favor of the defendant (a concept known as the rule of lenity).
So for those of you (on either the left or the right) who insist that Supreme Court decision-making is just politics in another arena, remember cases like this. While the justices no doubt have ideological views that shape their rulings, they are, in fact, striving to uphold the rule of law, not just to further a particular political cause.
And finally: don't wring your hands too much over Randy Hayes's fate. He wasn't sent to prison; instead, the judge sentenced him to five years' probation.
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