Rehearing petition (and guest post) in Mississippi Supreme Court case upholding 12-year prison term for mere possession of cell phone in jail
In this post earlier this month, I noted a disheartening ruling by the Mississippi Supreme Court upholding 12-year prison term for mere possession of cell phone in jail. Will Bardwell, an attorney in the Mississippi office of the Southern Poverty Law Center, last week sent me a copy of a motion for rehearing that he helped file in the case (which can be accessed below). I asked Will if he might want to do a guest posting to go along with my posting of the motion, and here is what he sent my way:
On its edges, sentencing law can be a bit of a technical thicket — difficult to navigate for laymen, or even for practitioners who don’t often work in that field. But at its heart, sentencing law — and the constitutional demands under which it exists – embodies our society’s sense of fairness. Above all else, sentencing demands that punishment must fit the crime.
It is not news that a consensus has developed among Americans that our criminal justice system’s priorities must be recalibrated. Nor is it news that our laws have failed to keep pace with that consensus. Unfortunately, though, the human toll of that failure does continue to make news.
In early January, the Mississippi Supreme Court added another ignominious chapter to that story when it affirmed the 12-year prison sentence of my client, Willie Nash. In 2017, Willie was arrested for a misdemeanor in Newton County, Mississippi. The county jail’s policy is to strip-search all arrestees, but when Willie arrived, the jail violated that policy — so the cell phone that a search would have uncovered remained with Willie. Willie never lied about the phone or made any effort to conceal it. And guards might never have discovered the phone if Willie had not offered it up and provided the passcode to unlock it.
For this, Willie was convicted of taking a cell phone into a jail — and sentenced to an astonishing 12 years in prison. No fewer than 36 states punish cell phone possession in a correctional facility with no more than five years in prison. If anyone in American history has ever gotten 12 years for doing what Willie did, then my partners and I at the Southern Poverty Law Center are unaware of it.
When Willie’s sentencing judge announced that decision, he pointed to Willie’s two prior burglary convictions some two decades earlier and explained that, if prosecutors had indicted Willie as a habitual offender, then Willie could have received 15 years — “so I want you to consider yourself fortunate,” the judge said.
It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way as New Zealand. And you don’t need a law degree to be as alarmed by the Mississippi Supreme Court’s reasoning as by its result.
Like Willie’s sentencing court, the Mississippi Supreme Court rested its decision heavily on Willie’s prior convictions. It pointed out the sentencing judge’s reliance on “evidence of Nash’s criminal history;” and it distinguished authority favorable to Willie by explaining 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.”
Like Willie’s sentencing judge, the Mississippi Supreme Court seems to think that Willie should consider himself lucky. But I’ve been in a room with Willie. I’ve looked into his tired eyes, heard his quiet voice, and seen how his oversized prison uniform hangs over his thin, slumping frame.
Willie doesn’t feel lucky. And the many Mississippians that I’ve spoken to, from the widest imaginable political perspectives, don’t think Willie is lucky.
In fairness, the Mississippi Supreme Court must view Willie’s case through a different lens than most people. For most of us, the shock to our consciences has been enough for us to know that Willie’s punishment does not fit his actions. For the Mississippi Supreme Court, though, that question has been complicated by the United States Supreme Court’s contorted precedent concerning the Eighth Amendment’s proportionality requirement.
That the Eighth Amendment requires proportionality is no longer up for debate. Aside from its existence, though, the Court’s decisions over the past 40 years have left nearly every other detail of the proportionality requirement unsettled. Seemingly irreconcilable decisions have been left unreconciled, and ambiguities have been left unclarified. In recent years, the Court has seemed content to keep its silence on the issue, perhaps hoping that lower courts will clarify what it has muddled.
But the outcome in lower courts has been predictably chaotic. These unanswered questions are not merely fodder for academic debate. There are human beings languishing in prison because of this case law jumble. Willie is one of them.
In particular, one unanswered question lies at the heart of Willie’s case: the Mississippi courts’ use of his prior convictions to justify his sentence. Despite his two burglary convictions nearly 20 years ago, Willie was not charged as a habitual offender. Mississippi’s courts relied on those convictions anyway -- and urged him to “consider yourself fortunate.”
But none of the United States Supreme Court’s proportionality decisions hold that prior convictions contribute to a crime’s gravity when the defendant was not charged as a recidivist. In Ewing v. California, the Court insisted that “weighing the gravity of Ewing’s offense” required it to “place on the scales not only his current felony, but also his long history of felony recidivism.” But Ewing had been sentenced under California’s “three strikes” law. Likewise, the defendants in Rummel v. Estelle and Lockyer v. Andrade – both of whose challenges to their life sentences failed – were sentenced under habitual offender statutes.
But Willie wasn’t charged as a habitual offender. And if Mississippi courts wanted to sentence him like a habitual offender, then prosecutors should have charged him as a habitual offender. But they didn’t.
Not surprisingly, lower courts have taken this unworked detail in different directions. In 2016, for example, the South Dakota Supreme Court held that “[f]or purposes of challenging the constitutionality of a sentence in a noncapital case, it appears that a defendant’s criminal history is only relevant when the sentence is enhanced under recidivism statutes.” That court is not alone in its view. Obviously, Willie’s case illustrates that the Mississippi Supreme Court has reached the opposite result; neither is it alone.
I’m hopeful that the Mississippi Supreme Court will correct the injustice of Willie’s case [based on the rehearing motion below] without the need to petition the United States Supreme Court. Willie’s case certainly does not rely on novel legal theories; even under the proportionality requirement’s framework as unsettled as it is, Willie’s sentence is grossly disproportionate. If, instead of taking a cell phone into jail, Willie instead had committed second-degree arson or poisoned someone in an effort to kill them, Mississippi law would have imposed a shorter sentence than the one he is serving today. A 12-year sentence for something so much more innocuous simply doesn’t pass the straight-face test.
But even if the Mississippi Supreme Court reconsiders Willie’s case, our society’s sense of basic fairness cries out for the United States Supreme Court to begin cleaning up the mess that its predecessors have made of the proportionality doctrine. The cost of that confusion is human lives like Willie’s. And that cost is growing.
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