Justice King: 12-year sentence for possessing a cell phone ‘a failure of our criminal justice system’

Mississippi stories of harsh injustices are making national headlines in light of the recent spate of deadly violence in its prisons.

One such story is that of Willie Nash, 39, who is serving a 12-year prison sentence for having a cell phone in county jail.

Judge Mark Duncan of Mississippi’s Eighth Circuit in Scott County pronounced the sentence in August 2018.

“Consider yourself fortunate,” Duncan told Nash. The maximum penalty for the crime is 15 years. Based on prior burglary convictions, Nash could have also received a three-strikes “habitual offender” penalty, which would have put him behind bars for the rest of his life. As it is, Nash could get an early release in as soon as three years, after serving 25 percent of his sentence.

Arrested in August of 2017 on a misdemeanor, Nash was in the Newtown County Jail in Decatur, Miss., when he asked for “juice” for his cellphone. Booking procedures mandate that jailers should have strip-searched Nash and seized the phone before they ever put him behind bars. Instead, a jailer seized the phone only after Nash asked him to charge it so he could text his wife.

The Mississippi Supreme Court unanimously upheld the sentence earlier this month, saying the sentence falls within the statutory range of three to 15 years for the crime of possessing a cell phone in a correctional facility.

Nash did not appeal the guilty verdict, only the “grossly disproportionate” sentence, according to court documents.

“While obviously harsh, Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate,” the court ruled.

Not all the justices were happy with the ruling. Justice Leslie King, the only African American member of the nine-member court, wrote in a concurring opinion that although the decision was correct under case law, “it seems to demonstrate a failure of our criminal justice system on multiple levels.”

King pointed specifically to three facets of the case:

1. The jail didn’t follow its procedures. “Nash went into the jail with a large smartphone that would have likely been impossible to hide during a strip search,” King wrote. A witness stated that “all inmates were told during booking that they could not bring phones into the jail. But Nash’s behavior was that of a person who did not know this, as he voluntarily showed the officer his phone and asked the officer to charge it for him.”
2. The officer who booked Nash didn’t testify, and therefore, couldn’t be cross-examined about how he missed the “large smartphone” during the mandated strip search. “It seems problematic to potentially allow someone into the jail with a cell phone, and then to prosecute that person for such action,” King wrote.
3. Nash had not been in any trouble for nearly a decade, demonstrating “a change in behavior.” With “a wife and three children who depend on him,” and the “seemingly innocuous, victimless nature of his crime,” King wrote that both the prosecutor and the judge could have used their discretion to make other choices, including not prosecuting the case at all.

Justice Leslie D. King of the Mississippi Supreme Court.

“Cases like Nash’s are exactly why prosecutors and judges are given wide discretion,” King wrote in his conclusion. “and the facts of the case lend themselves to an interpretation that his crime was accidental and likely caused by a failure in booking procedures. Nash did not do anything nefarious with his phone, and he certainly did not hide his phone from law enforcement. … [I]n my opinion, both the prosecutor and the trial court should have taken a more rehabilitative, rather than punitive, stance.”

Mississippi’s law regarding contraband in prisons is one of the strictest in the country. Under the law, cellphones and even chargers are the same as heroin or guns, and all prisoners face three to 15 years if they’re caught. In comparison, federal law provides a maximum sentence of one year for contraband cellphones, and in some states, possession of a cellphone isn’t punishable with prison time.

That’s not to say that cellphones in prison aren’t problematic; they are. As Judge Duncan told Nash when he sentenced him, there is a reason that it was “such a serious charge.” Cellphones allow unmonitored communication within and outside of prisons by hardcore felons and gang members, and they’re a temptation for guards and visitors to smuggle into the prisons in exchange for cash or favors.

During the recent violence that left five inmates dead and an undisclosed number of inmates injured, prisoners posted photos and videos of the violence on social media, including bloody bodies and setting bodies on fire.

The Mississippi Department of Corrections has not verified any of the media coming from inside the prison. Other than a few press releases, MDOC is essentially maintaining silence about the incidents.

But Willie Nash was in a county lockup for a misdemeanor—reportedly disorderly conduct—not doing hard time in state prison.

Cliff Johnson, director of the MacArthur Justice Center at Ole Miss, told the Associated Press Thursday that overly harsh sentences in Mississippi are part of the state’s prison problem.

“Anybody who thinks there’s not a connection between sentences like this and the recent violence in our prisons hasn’t been paying attention,” Johnson said.

Read the Mississippi Supreme Court decision.