Criminal Justice

Mississippi Court Upholds 12-Year Sentence for a Man Who Unwittingly Had a Phone in Jail

The court says 12 years was "obviously harsh," but hey, at least it wasn't 15.

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When Willie Nash was booked into a Mississippi corrections facility, officers failed to confiscate his phone. For that, he was sentenced to 12 years behind bars. The state's Supreme Court acknowledges that proper booking procedure was probably not followed and that Nash did not seem to know his phone was illegal, but they nonetheless ruled Thursday that the sentence is fair.

After Nash was booked into the Newton County Jail on a misdemeanor charge, he asked a jailer to charge his phone, seemingly unaware that he was not supposed to have the item. Mississippi Code Section 47-5-193 considers the possession behind bars of "any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone" a felony; the offense carries a prison sentence of three to 15 years.

The jailer took the phone to a sheriff's deputy. Nash initially denied ownership, but officials confirmed that it was his using the passcode he had previously provided the jailer. In one of the text exchanges discovered, a contact inquired about Nash's location, to which he responded, "in jail."

A jury then found Nash guilty of possessing of a cell phone in a correctional facility. At sentencing, the judge told Nash to "consider yourself fortunate." Had the court used Nash's previous burglary convictions to classify him as a habitual offender, he would have received the full 15 years in prison, not 12.

Nash appealed not the conviction but the lengthy sentence, which he said was both "grossly disproportionate" and a violation of his Eighth Amendment right against cruel and unusual punishment. He also argued that the statute's list of prohibited items put them in descending order of seriousness, implicitly indicating "differing degrees of transgression" that deserved different penalties. But the state Supreme Court decided that it could not find "under the law that the trial court abused its discretion in sentencing."

The Court shot down the "differing degrees of transgression" argument on the grounds that the statute warns against violating "any provision." And since the sentence fell within the "statutory range"—that is, because it does not exceed 15 years—the Court said it could not be appealed.

"While obviously harsh, Nash's twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate," the Court concluded. The judge, the decision noted, had expressed his reasoning for the sentence, citing Nash's prior convictions and acknowledging that he could have given Nash the full 15 years.

In a concurring opinion, Associate Justice Leslie D. King wrote that while the Court upheld case law in its ruling, the case "seems to demonstrate a failure of our criminal justice system on multiple levels."

It was "highly probable," King said, the proper booking procedure was not followed and that Nash's behavior indicated he was unaware that his phone was illegal. He added that it seemed "problematic" to "allow someone into the jail with a cell phone, and then to prosecute that person for such action." And despite Nash's previous convictions, King felt his history showed a change in behavior. Nash had served time for burglary, but for nearly 10 years afterward, Nash had stayed out of trouble and has provided for his wife and three children.

The judge could have used more discretion, King concluded, since Nash's crime was victimless, he was not doing anything "nefarious" with the phone, and he provided it willingly.

Mississippi has the third-highest incarceration rate in America.

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    1. He didn’t even mean to be black! Well, he did ask the jailer, in an English sentence, to charge his phone, and he did get charged and sentenced.

    2. That was my very first thought also.

  1. ’cause remember, ignorance of the law is no excuse… unless you’re a cop.

      1. Caught passed out drunk in the middle of the road in their POLICE CRUISER and not arrested.

      2. Qualified immunity

      3. I was in fear for my life.

      4. I was specifically thinking of Heien v. North Carolina (2014). But the examples of police ignorance being excused are endless.

        1. Police ignorance? Isn’t that a tautology (two ways of saying the same thing)?

      5. In what way are cops excused?
        What happened to the jailers who failed to confiscate the deadly cell phone that cost the prisoner 12 years?
        [crickets]

      6. “”In what way are cops excused?””

        Really?

  2. And we wonder WHY it is, that many black people… Even people in general… Do not like (or want to cooperate with) the racket known as “law enforcement”.

  3. So the defendant is responsible for the jailers not following procedures??? The judge is flat-out wrong on this.

    1. I have to say. If this is as-written, no one in their right mind would think to charge him, much less would he be convicted and be appealing on just the sentence.

      There is no possible way that this is the whole story. The concurring opinion says as much, noting that the booking officer was not even called to the stand. That means either the defense was completely and utterly incompetent (given this appeal, possibly) or something else was omitted.

      1. Davis is no stranger to the judicial system. He’s got a record with multiple burglaries on it. Are you telling me this is his first arrest and booking? Mens rea nothing, he knows he’s not supposed to have a cell phone in jail. I disagree with the concurring opinion on this one: i can think of several ways Davis could have gotten the phone into the jail, and a few reasons Davis would have been willing to incriminate himself, including just being a dumb ass. Also, while the concurring opinion goes on and on about the victimless nature of his cell phone crime, how did he end up in jail in the first place to get busted for smuggling a cell phone there? The opinion says “misdemeanor charge” but doesn’t say which one.

        If the Supreme Court of Mississippi’s opinion is citing Davis’s criminal record correctly, Davis had two prior burglary convictions, the last one getting him 8 years in prison, and could have been sentenced in this case as a habitual offender. Doing so would have given Davis a full 15. As it is, he gets 12, which is within the statutory guidelines of 3-15 for possessing contraband in the penal institution he was confined within. Plus, as the opinion noted, he’s eligible for parole after 25 percent of his sentence.

        I think his sentence was disproportionate. But not so disproportionate as to trigger Eighth Amendment concerns. Basically, MS or whatever city within it, is trying him on the strict liability crime they can easily prove, vs the malum in se crimes that are tougher to prove, like burglary. Or the misdemeanor that got him thrown into jail in this case.

        1. If ‘Willie Nash’ is Willie C. Nash, 36, the misdemeanor charge he got arrested for was likely Disorderly Conduct and Disturbing the Peace. At least per the Newton County Appeal police blotter, dated 28 February, 2018: https://www.newtoncountyappeal.com/public-records/public-records-022818

          This is smelling like Nash really pissed off the cop or jail staff for him to take this kind of charge on a disorderly conduct charge. I don’t mind a burglar actually getting some large amount of time to keep him off the streets, but it looks more and more like Nash was actually trying to keep himself out of trouble—the 2018 arrest notwithstanding—and had given up breaking into people’s houses. If that’s the case, then giving him 12, out in 3, is a waste of everybody’s time.

          More information would be helpful.

          1. More information would be helpful.

            You do realize this is the Reason site, right?

        2. I think his sentence was disproportionate. But not so disproportionate as to trigger Eighth Amendment concerns.

          Jesus christ. Are you out of your mind?

        3. Are you insane? He was charged with possessing a goddamn cell phone! How the fuck does possession of a cell phone or anything else that poses no danger to anybody else deserve even jail time, for christ’s sake!!! Even if he had a weapon, that might deserve maybe another night in jail and maybe the jailer’s firing for letting him carry it in. It’s the fucking jail’s job to remove contraband.

          1. “How the fuck does possession of a cell phone or anything else that poses no danger to anybody else…?”

            One can use a cell phone to take video of guards abusing prisoners or otherwise violating their constitutional rights, that’s how.

      2. I’m gonna go out on a ledge and guess he had a public defender. They’re pretty infamous for their inability to give cases the attention they deserve.

      3. If he knew he shouldn’t have the phone, why did he ask about charging it?

        If he was arrested, and the phone was on him (ie he didn’t buy it inside), he would have no means of not bringing it in unless the officers removed it from him.

        This is pretty ridiculous and a clear violation of the 8th amendment (the case law/statute itself). But in all of these cases, the defendants are so unsympathetic that no average Joe is going to go to the mat for them, and the laws aren’t going to change.

  4. Judges like to get together at the end of the day to laugh and brag about how they stuck it to some uppity black.

    1. Perhaps a familiarization, hyperbolically speaking, with wood chippers might be appropos?

  5. So cops can literally screw with everyone who comes in with a phone by not confiscating it before putting them in a cell.

  6. Did I miss the link to where the booking jailer who was his accomplice got 12 years as well?

    1. So this justice, King, writes 5 paragraphs of what sounds like a dissent and seems to offer grounds for appeal…but it’s all under the heading of a concurrence. I really don’t understand the law.

      1. Just imagine a boot, stamping down on a human face, forever.

  7. unauthorized electronic device, contraband item, or cell phone” a felony; the offense carries a prison sentence of three to 15 years.

    So the question is (as the court alluded to in its ruling), why is a 15 year offense to be in possession of a cell phone, and if the range is 3 – 15 years, why wouldn’t the cell phone have gotten the 3?

    1. Third time offender, methinks.

    2. Because sentencing ranges depend on a variety of factors beyond merely the type of contraband that was an element of the violation. Those factors can be wide-ranging, and indeed it’s traditional in sentencing for the judge to consider things that are outside the rules of evidence. For example, the convict’s prior convictions and arrests may be considered, hearsay evidence may be considered, and so on.

      I wonder, given the facts we know off, whether Nash was set up and told to go snitch? And after he told them to piss off, he caught this case.

      As far as an Eighth Amendment violation, the problem is with MS making the strict liability possession of any contraband in a jail, a felony with a 3-15 year sentence, not in the judge choosing to give a sentence within those guidelines. The opinion notes that, it would be improper under the Eighth Amendment to give a large sentence—the case cited dealt with a 60 year sentence for possession of crack—to a first offender, for a crime like Nash’s, but not to a person who would be eligible to be classified as a habitual offender, like Nash.

      The sentence is grossly out of the ordinary for the stated offense. But evidently legal.

      1. Nah, 60 year sentence for possession would be pretty egregious too, no matter how “habitual” the person is.

        1. It might be egregious, but it wouldn’t violate the Eighth. At least the Supreme Court thought so.

          I think the amount possessed in that case was something like a quarter pound or so by that first time offender. Way over personal use, but not causing Tony Montana any sleepless nights. 60 years was a bit much.

          I think the conspiracy cases where people lend their phones, and end up catching felony time, are far more egregious. Particularly since it’s arguable that a lot of those ensnared aren’t in the life, and therefore have no knowledge to trade (or really knowledge they’re doing something all that wrong), so end up doing most of their heavy sentence.

          There’s a reason so many veteran practitioners of criminal law are quoted as thinking of the whole enterprise as one giant roulette wheel.

      2. He had paid for his previous crimes. They should not be held against him. This sentence is totally ridiculous. He should get the ACLU involved. He did not hide the phone, He asked for it to be charged, this indicates that he did not know so should be given the benefit of doubt.

  8. It’z crazy reading this story as back in my youth a friend and I were arrested. After multiple searches, my friend ended up in the local precinct still holding several bags of ganja. He indiscreetly (though discreetly enough for the NYPD) started dropping them on the floor and booting them around before we were put on a bus to central booking. At central, they didn’t find it but he still had a bag in his wallet. We did the prudent thing and smoked a loose-leaf jay in a central booking holding cell. At least our new friends in central saw we had guts, and when the CO dragged out my friend and two unlucky people, I woke up from my feigned nap and finished the roach.

    I guess my buddy could have said he didn’t realize having weed in jail was illegal, but we were a better class of criminal in those days. I could only imagine how much more trouble the contraband charges would have been compared to what we were brought in there for to begin with.

  9. “And despite Nash’s previous convictions, King felt his history showed a change in behavior. Nash had served time for burglary, but for nearly 10 years afterward, Nash had stayed out of trouble and has provided for his wife and three children.”

    So he gets busted for a misdemeanor offense [unpaid traffic fines?] and when he gives them the phone they failed to take during booking, they see his PAST offenses and see a prime opportunity to put him “back where he belongs”….holy fuck.

  10. The “justice system”:We screwed up, didn’t do our job, and someone has to pay because “the law is the law”. While ignorance of the law is quite understandable, we need a fall-guy. It’s all about us, we make the law, we enforce it, and we judge our performance. Don’t like it? Maybe you shouldn’t give us the political power to rule over you. But you won’t withdraw it because you are too low in self-esteem to run your own life, so sit back and take it. Thanks for your servitude.

    1. Hey, how about we put everybody responsible for the screwup in the cell with the guy, including the idiot judge?

  11. 12 years for a cell phone when he was initially booked on a misdemeanor? That is insane.

    1. It is insane. The oversentencing of minor crimes will be one of those things where people of the future will look back on 21st century USA with astonishment.

  12. As a former federal law enforcement officer, my opinion, having locked up lots of bad guys, is that the individual should not be charged with the crime of possessing what the booking officers allowed him to keep in his possession. When a person is brought into a jail for in-processing, it is the responsibility of the jailers to make sure that the individual being locked up does not possess any contraband. This sounds like a setup, because if the phone had been a snub-nosed .357, you can be certain that he would not have been allowed to possess it. Its a setup and the judge should be removed from the bench for his lack of discretion. 12 years for contraband not collected by the jailers is itself a crime.

    1. Winston101 – Exactly!!! The jail staff fucked up and should be fired. Period.

  13. Our legal system is a goddamn nightmare. Here’s what should have happened.

    #1. The responsible jail staff should have been fired for fucking up.
    #2. The man who was charged should not have been charged for this fucking non-crime. Even if he smuggles in a cell phone, that doesn’t deserve jail time!!! Maybe he would deserve a fine but that’s it.
    #3. If the fuckheads actually charged him, a reasonable jury would follow jury nullification and acquit him for this non-crime.
    #4. The legislature would immediately rewrite this fucked up law so that possession of non-dangerous contraband in jail would not be punished by any jail or prison time. And the jail staff would be held responsible.

  14. Mississippi… There are governments that feel threatened by the thought of brown people having 1st or 2nd Amendment rights, and all of them are controlled by politicians that pay tens or hundreds of thousands of dollars into the Democrat and Republican party national committees to buy votes for more of their kind. Look at AOC… she is a little ahead of the curve in converting the Dems into a wholly-owned subsidiary of CPUSA, and they are demanding their pound of flesh while she raises funds for the Sharia wing.

  15. Nash had previous burglary convictions. He’s been in prison before. Hard to believe he didn’t know that a phone was contraband.

  16. “Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate”

    Judge using new charge to punish defendant for previous convictions.

    1. Bingo. They don’t like this guy for some reason. Maybe, in their view, he got by with crimes they couldn’t pin on him, and this was one way to get him off the streets.
      But yeah, 12 years for possessing a cell phone in jail is outrageous.

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