The guard found out not because of his diligent investigatory skills, but because Willie Nash asked him for “juice.” It dawned on the guard that he wasn’t talking orange as Nash handed him his cellphone, having been taken into the Newton County jail on some unspecified misdemeanor. For that, Nash was sentenced to 12 years.
The statute Nash was convicted of violating, Mississippi Code Section 47-5-193, prohibits inmates from possessing “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.”
Deadly weapons and SIM cards are pretty much the same thing, and certainly worthy of the same punishment. Hey, the sharp edge of a SIM card could take an eye out if thrown with precision, right?
On the one hand, Nash had priors for burglary, but had not been arrested for about ten years, reflecting that he had changed his life. But prior are priors, and the lip service paid to second chances disappears the moment the cell door shuts. On the other hand, as noted in his concurrence upholding the 12 year sentence, Presiding Justice Leslie King noted that Nash’s possession of the cellphone might not have been his wrongdoing at all.
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.
This patently obvious point begs the questions of why Nash was charged for possession of a killer SIM card at all, and how he was convicted given what would appear to be at most a intake failure that left Nash in possession of his cellphone. To the extent any mens rea was needed to convict, his request for “juice” would clearly reflect that he had no idea he wasn’t permitted to possess a cellphone.
An officer testified that “they were told”? This is familiar testimony, “our normal procedure is to” do things exactly the way the book says they should, which has no bearing upon what they did in this instance, which no one specifically remembers but they’re sure they did it the right way because what else are they going to say? Except, as Justice King notes, if Nash knew he wasn’t allowed to possess the cellphone, would he take it to the guard for “juice”?
Yet, Nash was inexplicably convicted for the jail’s failure to take his “large smartphone,” which is bad enough, but then received a sentence of twelve years for it. While recognizing the sentence was “harsh,” even disproportional, the Mississippi Supreme Court held it wasn’t grossly disproportionate.
Here, in contrast to Davis, the trial judge did not simply opt for the maximum penalty without justification. Instead, the judge exercised his discretion after reviewing a presentence-investigation report. Similar to Ford, the judge emphasized that possession of a cell phone in a correctional facility was a serious charge. And unlike Davis and Ford, Nash was a documented repeat offender. The judge noted that Nash’s prior felony convictions subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged him as a habitual offender.
Is possession of a cellphone a “serious charge”? Under the worst of circumstances, it’s surely not as bad as a loaded weapon, but this wasn’t the worst of circumstances, a minor detail that didn’t seem to factor into the court’s facile characterization. And then there’s the priors. Oh, the priors, where the majority ignored the detail raised by Justice King, that Nash had spent the prior eight to ten years clean, was only there on a misdemeanor (and, presumably, nothing remotely connected to a burglary, or it would have been a huge justification in the opinion) and only had the “large smartphone” because the jail screwed up.
Despite Justice King’s recognizing the arguments that make this case not merely bizarre, but unjustifiable, he nonetheless concurred in the ruling to uphold the sentence.
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 a more rehabilitative, rather than punitive, stance.
Decisions like this are “exactly why prosecutors and judges” can’t be trusted to exercise the wide discretion given. The sentence fell within the statutory range, and the court refused to find that the trial court abused its discretion in imposing a harsh and disproportionate sentence, but not a “grossly disproportionate” sentence.
While it’s kind of Justice King, in his opinion, to urge the prosecutor and trial court to take “a more rehabilitative” (did Nash need to be rehabilitated from cellphone possession?) stance, the opportunity for a judge to prevent an outrageously harsh sentence is provided and Justice King may have felt badly about it but, like everyone else involved, let it slide.