The Mississippi Supreme Court affirmed what it admitted was an “obviously harsh” punishment on Thursday, ensuring that a black man will serve 12 years in State prison because he used his cellphone while in jail on a misdemeanor charge. While in a Newton County, Miss., jail in 2018, Willie Nash asked the jailer if he could charge his phone, but the jailer took the phone to a deputy sheriff who unlocked it and realized Nash had been sending text messages while he was in jail.
In August 2018, Eighth Judicial District Judge Mark Duncan (whom Mississippi Governor Phil Bryant appointed to fill a vacancy in 2017) told Nash he should “consider himself fortunate” that he was not charged as a habitual offender, while sentencing him to 12 years in prison for possessing the cell phone in a correctional facility—a felony in Mississippi that can carry between three and 15 years in prison. Nash appealed the sentence to the Mississippi Supreme Court, arguing that the crime violated his constitutional rights.
‘A Failure of Our Criminal Justice System’
When the State’s high court affirmed the decision on Thursday, presiding Justice Leslie D. King wrote that, while he concluded that the sentence falls within the realm of the law, it “demonstrate(s) a failure of our criminal justice system on multiple levels.”
Mississippi has the third highest incarceration rate in the country—a point that criminal justice reform group FWD.us has made in recent years as it urged the State’s legislature to cut back on its “extreme sentencing” practices. Black Mississippians face far higher rates of incarceration than white Mississippians, and often get more severe sentences for the same crimes as their white counterparts.
And while the trial judge in August 2018 suggested Nash could have been sentenced under the habitual offender laws (which FWD.us says play a big role in Mississippi’s high mass incarceration rates), King pointed out that, prior to the cellphone incident, Nash had not been convicted of a crime since a 2001 burglary for which he served seven years in prison.
That “evinces a change in behavior,” King wrote.
“Nash served his time for his previous convictions and stayed out of trouble with the law for many years. He has a wife and three children who rely on him. His crime was victimless, and the facts of the case lend themselves to an interpretation that his crime was accidental and likely caused by a failure of booking procedures,” King wrote. “Nash did not do anything nefarious with his phone, and he certainly did not hide his phone from law enforcement.
“While I do not think this Court can find under the law that the trial court abused its discretion in sentencing, it is a case in which, in my opinion, both the prosecutor and the trial court should have taken a more rehabilitative, rather than punitive, stance.”
Judge: A ‘Seemingly Innocuous, Victimless’ Crime
Calling it a “seemingly innocuous, victimless” crime, King wrote, it “would have been prudent for the prosecutor to exercise prosecutorial discretion and decline to prosecute or seek a plea deal” and for the judge to “use his judicial discretion” by handing down a lesser sentence. Steven Kilgore, the district attorney for Mississippi’s Eight Judicial District, led Nash’s prosecution. Governor Bryant (who this past week claimed Mississippi “just got out of racism“) appointed Kilgore to the district attorney’s office in 2017 after elevating the former district attorney, Mark Duncan, to the Eight District trial court.
In Thursday’s State Supreme Court ruling, King recounts the story of the night that led to Willie Nash’s prosecution. Nash, apparently not realizing he was not supposed to have his cellphone while in jail, asked the jailer for “some juice,” meaning he wanted the jailer to charge his phone for him, and then slid the phone to him. The jailer took the phone to the sheriff’s deputy, who unlocked it, using a code Nash gave the jailer, and found text messages from Nash and another person. “WYA” (where you at), one text read. “In jail,” Nash replied.
While confined at the Newton County Jail on a misdemeanor charge, Nash asked a jailer for “some juice.” At first, the jailer thought Nash was asking for something to drink. But then Nash slid the cellphone to him. The jailer took the phone and gave it to the sheriff’s deputy in charge.
But when the deputy sheriff unlocked the phone—using the code Nash had given the jailer—he found photos of Nash, as well as a text-message exchange from the day Nash had handed over the phone in jail. The incoming message asked, “WYA” (short for “where you at”), and the outgoing message responded, “in jail.” Nash allegedly later denied that the phone belonged to him.
In his opinion, King writes that it is “unknown whether booking procedures were actually followed in Nash’s case.”
“Furthermore, had this officer testified that booking procedures were followed for Nash, he could have been questioned on cross-examination about how he possibly missed a large smartphone during a 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.
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