Then Duncan handed down sentence: 12 years in state prison.
“Consider yourself fortunate,” the judge said, noting that Nash could have received more time based on prior convictions dating back almost two decades.
On Thursday, the Mississippi Supreme Court affirmed Nash’s sentence over arguments from his attorneys that it was grossly disproportionate, ruling that the prison term fell within statutory limits.
But even as the justices agreed that the sentence was lawful, the decision was fractured. In a sharply worded concurring opinion, Justice Leslie D. King wrote that Nash’s offense was “victimless” and that the case as a whole seemed “to demonstrate a failure of our criminal justice system on multiple levels.”
The outcome highlights Mississippi’s tough approach to a crime that carries far lighter penalties in other parts of the country, and drew a shower of attention from criminal justice advocates who called it a potent example of harsh sentencing trends nationwide.
“It shows how punitive our system is federally and within states,” said Nicole D. Porter, director of state advocacy for the Sentencing Project. “It’s a window into the extreme prison terms that many individuals are subject to regardless of circumstances.”
Nash’s punishment stemmed from his arrest in August 2017 on a misdemeanor charge.
As the 39-year-old was waiting in the Newtown County Jail in Decatur, Miss., he asked a jailer to plug in his smartphone, which, for reasons that remain unclear, officers did not confiscate when he was booked. The jailer seized the phone, which Nash had used to text his wife, according to court documents. Soon after, Nash was indicted under Mississippi’s law barring contraband in jails and prisons.
King wrote in his opinion that it was “highly probable” that officers at the jail did not follow booking procedures and that Nash was unaware his phone was prohibited.
Inmates were supposed to be strip-searched when booked, but Nash was somehow allowed inside with a large smartphone that “would have likely been impossible to hide,” according to King. Officers were also supposed to tell inmates 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,” the justice wrote.
The judge and jury in Nash’s trial never heard whether officers followed booking procedures because the officer who booked Nash did not testify, according to King’s opinion.
“It seems problematic to potentially allow someone into the jail with a cellphone,” King wrote, “and then to prosecute that person for such action.”
Another justice, David M. Ishee, concurred in the result only, typically a signal that a judge agrees with the decision reached but not the reasoning.
But Justice James D. Maxwell II, writing for the court, said the sentence was not excessive, rejecting arguments from Nash’s attorneys that it violated the Eighth Amendment’s ban on cruel and unusual punishment.
“While obviously harsh,” Justice James D. Maxwell II wrote for the court, “Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.”
It was not immediately clear from court records why Nash was initially arrested, but a person familiar with the case described the underlying offense as a misdemeanor disturbance or disorderly conduct charge. The person spoke on the condition of anonymity to avoid influencing the proceedings.
Nash, a father of three, is tentatively scheduled for release in February 2029, though he will be eligible for parole after serving a quarter of his term.
A public defender who represented Nash declined to comment. The assistant district attorney in the case, Brian K. Burns, who is now a local judge, could not immediately be reached for comment, and the Mississippi attorney general’s office did not immediately respond to requests to discuss the case.
Mississippi’s statute targeting prohibited items in correctional facilities ranks among the strictest in the country. The law treats cellphones, SIM cards and even chargers the same as drugs or deadly weapons. Prisoners face a minimum of three years and a maximum of 15 years in prison if they are caught with the devices.
Federal law is less severe by comparison, allowing a maximum sentence of one year’s imprisonment for contraband cellphones. In some states, cellphone possession by inmates is not a crime punishable by prison time.
Illicit cellphones were at the center of a sweeping murder and racketeering trial against members of the white-supremacist group Aryan Brotherhood of Mississippi in 2016. A leader of the gang testified in the federal case that he and other members used cellphones to traffic methamphetamine, launder money and orchestrate violent attacks.
Nash used his phone for a simple purpose: to tell his wife he was locked up, according to court records. “WYA,” she texted him. “In jail,” he responded. Shortly after, he asked for “some juice” and slid the device to the jailer.
On appeal, Nash’s attorneys did not challenge his conviction but argued that the law created different categories of prohibited items. Nash should have been sentenced accordingly, they said.
“Weapons can kill or injure, the contraband items are noxious, but cell phones, used as Nash was using his, are relatively benign,” attorney W. Daniel Hinchcliff wrote.
The state Supreme Court justices disagreed, writing that the law did not “assign different levels of punishment” for prohibited items.
The justices also noted, as the trial judge had, that prosecutors could have charged Nash as a habitual offender. Nash had two prior burglary convictions, the most recent in 2001, for which he was sentenced to seven years in prison, records show. He could have been eligible for the maximum sentence of 15 years for cellphone possession.
“The trial judge did not simply opt for the maximum penalty without justification,” Maxwell wrote for the court. “Instead, the judge exercised his discretion.”
But King, in his opinion, said the trial judge and prosecutors should have used their discretion to seek a lighter sentence or avoid charging Nash altogether. Nash’s crime was “innocuous,” King said, and his criminal history showed he had changed his behavior.
“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,” King wrote. “Both the prosecutor and the trial court should have taken a more rehabilitative, rather than punitive, stance.”