- On August 23, 2018, Willie Nash was sentenced to 12-years in prison and a $5,000 fine for possessing a cell phone in jail
- Nash was in the Newton County Jail for a misdemeanor when he asked a jailer if he could charge his cell phone
- Having a cell phone in a correctional facility is a violation of Mississippi Code Section 47-5-193, a felony with up to 15-years in prison and up to a $25,000 fine
- In an opinion with the decision, Judge Leslie D. King said Nash’s case as a whole “seems to demonstrate a failure of our criminal justice system on multiple levels”
The Mississippi Supreme Court affirmed the 12-year sentence Willie Nash received on August 23, 2018, after he was convicted of having a cell phone in jail.
The decision to affirm the harsh sentence follows inmates leaking dozens of videos to social media from Mississippi State Penitentiary—better known as Parchman—and other prisons around the state. The videos give a horrifying look into the daily lives and living conditions of inmates within the broken Mississippi Department of Corrections.
Mississippi Code Section 47-5-193
Mississippi Code Section 47-5-193 makes it illegal for any offender at a correctional facility to possess “any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers.”
Nash did not appeal the jury’s verdict in regards to him possessing a cell phone inside a correction facility, a felony that carries a statutory range of three to fifteen years with a fine up to $25,000. Along with the harsh prison sentence, Nash also received a $5,000 fine.
Twelve Years For A Cell Phone In Jail
In his appeal, Nash claimed the 12-year sentence is grossly disproportionate to the crime and violated the Eighth Amendment. “While obviously harsh,” Mississippi Supreme Court Judge Mark Sheldon Duncan wrote in his decision, Nash’s twelve-year sentence for possessing a cell phone facility is not grossly disproportionate.”
While Nash was in the Newton County Jail on a misdemeanor charge he asked a jailer for “some juice.” The jailer initially thought he wanted something to drink but then Nash revealed his cell phone. The jailer took Nash’s phone and gave it to the deputy sheriff in charge. Nash later tried to deny the phone was his. When the deputy sheriff unlocked the phone—using the code Nash had provided to the jailer—he found pictures of Nash and text messages from the day he handed in the phone. A text to Nash read, “WYA” and he responded, “in jail.”
At Nash’s sentencing, the trial judge told him the crime may seem insignificant but there is a reason why possessing a cell phone in a correctional facility “is such a serious charge.” The judge also told Nash to “consider yourself fortunate.” He informed Nash that due to his prior burglary convictions he could have been indited as a habitual offender which would have given him a 15-year sentence. Instead, Nash was sentenced to 12-years in the custody of the Mississippi Department of Corrections.
Nash argued the statute created “three categories … of a descending order in severity.” He argued possession of a weapon is most serious, followed by the possession of contraband, and least serious—if not used for criminal activity—possession of a cell phone. However, the statute’s language does not support Nash’s argument that Legislature ever intended to assign different levels of severity or punishment depending on what the inmate possessed. Nash’s “mere possession of a cell phone” is a specific violation of Section 47-5-193 and his 12-year sentence falls within the statutory range.
Jude Leslie D. King
Presiding Justice Leslie D. King wrote his own separate opinion on the case as a whole. In his opinion, King writes that Nash’s case “seems to demonstrate a failure of our criminal justice system on multiple levels.” King believes there is a highly probable chance Newton County Jail’s booking procedure was not followed properly. Based on Nash’s actions—namely requesting a charger from the jailer—King believes he was not aware he was not allowed his cell phone as he clearly did not hide it from staff. King’s full opinion can be read below.
I agree that, with regard to Nash’s sentence, this Court has reached the correct result under our caselaw. However, I write separately to voice my concern over this case as a whole—it seems to demonstrate a failure of our criminal justice system on multiple levels.
First, it is highly probable that the Newton County Jail’s booking procedure was not followed in Nash’s case. An officer at the jail testified that all inmates were strip-searched when booked, although that officer did not book Nash. Yet Nash went into the jail with a large smartphone that would have likely been impossible to hide during a strip search. That officer also testified 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.
Second, the officer who booked Nash the night before the cell phone incident did not testify at trial. It is consequently 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.
Third, I note that Nash’s criminal history evinces a change in behavior. Both his previous convictions were for burglary. His last conviction was in 2001, and he was sentenced to serve seven years. So fo for approximately eight to ten years, Nash has stayed out of trouble with the law. He has a wife and three children who depend on him. Combining this fact with the seemingly innocuous, victimless nature of his crime, it seems it would have been prudent for the prosecutor to exercise prosecutorial discretion and decline to prosecute or to seek a plea deal. In that same vein, it would have been prudent for the judge to use his judicial discretion in sentencing to sentence Nash to a lesser sentence than that of twelve years.
Cases like Nash’s are exactly why prosecutors and judges are given wide discretion. 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 in booking procedures. 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 more a rehabilitative, rather than punitive, stance.