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Critics Say Mississippi's Cellphone Felony Offense Is Too Harsh

RACHEL MARTIN, HOST:

It is illegal for anyone behind bars to possess a cellphone. In Mississippi, it's a felony offense. A Mississippi man picked up on a misdemeanor domestic violence charge didn't turn his phone over, and he ended up with a 12-year sentence. Now there's a push to get the Mississippi Supreme Court to reconsider the case. NPR's Cheryl Corley reports.

CHERYL CORLEY, BYLINE: This case about cellphones, prison and sentencing has some complicated twists and turns, but there's little disagreement about a few facts. No. 1, it was August of 2017 when police picked up now-39-year-old Willie Nash for what they called a misdemeanor domestic violence charge. No. 2, the married father of three had his cellphone on him when police took him to the Newton County Jail in east Mississippi.

WILL BARDWELL: And since they didn't search him, they didn't find his cellphone.

CORLEY: Will Bardwell is a senior attorney with the Southern Poverty Law Center, or SPLC.

BARDWELL: And they might never have discovered that he had a cellphone if he had not offered up the cellphone and asked them to recharge the battery for him.

STEVEN KILGORE: Those are all assumptions. None of those are facts.

CORLEY: Steven Kilgore is the district attorney for Mississippi's Eighth Judicial Circuit. His office prosecuted Willie Nash.

KILGORE: This wasn't his first time in jail. For him to not be aware that he couldn't have a cellphone would be shocking.

CORLEY: There's been lots of speculation about how Nash ended up with his cellphone and whether he knew the policy. Bottom line, it's a felony in Mississippi for any incarcerated person to possess one. The penalty is three to 15 years. The judge in the case held two prior convictions for burglary from nearly two decades ago against Nash. He sentenced him to 12 years and told him he was fortunate he didn't get more time. Attorney Robert McDuff, with the Mississippi Center for Justice, calls that absurd.

ROBERT MCDUFF: He has obviously led a life since then that has not involved any criminal convictions. Sentencing him based in part on convictions that are that old simply makes no sense.

CORLEY: Cellphones have long been considered a problem in prisons and jails. Thousands make their way behind bars despite efforts to stymie their flow. The FBI says prisoners use them to commit more crimes from the inside or to harass victims' families. Over the last few months in Mississippi prisons, there's been lots of violent unrest and more than a dozen deaths. Governor Tate Reeves partially blames contraband cellphones.

(SOUNDBITE OF PRESS CONFERENCE)

TATE REEVES: These phones have been illegal for years, but they've been snuck in. And they're being used to coordinate gang activity throughout the Mississippi system and even throughout the country. That was a large part of what caused the recent series of killings to escalate as much as it did.

(SOUNDBITE OF PROTEST)

BENNY IVEY: No justice.

UNIDENTIFIED PROTESTERS: No peace.

IVEY: No justice.

UNIDENTIFIED PROTESTERS: No peace.

CORLEY: A day after the governor's press conference, protesters rallied at the Mississippi State Capitol. Benny Ivey, the head of an activist group Strong Arms Of Jackson, said that if it weren't for cellphones, inhumane conditions in the state's prisons would remain hidden.

(SOUNDBITE OF ARCHIVED RECORDING)

IVEY: Thank God they had cellphones in the penitentiary...

(CHEERING, APPLAUSE)

IVEY: ...'Cause it done shed some light on some stuff, right? It done shed some light on some stuff, and we ain't having it.

CORLEY: Nearly every state has a law in place to punish prisoners found with cellphones. An SPLC analysis shows in at least 36 states, the penalty is no more than a five-year sentence. And in several states, it's no prison time at all. Will Bardwell says that's evidence they want the Mississippi Supreme Court to take into account.

BARDWELL: If Willie had poisoned someone in an attempt to kill them, if he had sold a child, if he had assaulted a police officer, he would have received less time for all of those crimes than the sentence he is serving today.

CORLEY: Citing the U.S. Constitution, Bardwell calls it cruel and unusual punishment, and one justice on the Mississippi Supreme Court said the state could have taken a less punitive approach. District Attorney Kilgore says Nash and his lawyer did turn down a three-year plea deal. And it's possible that he could come up for parole next year. Instead of waiting for that to occur, the Southern Poverty Law Center wants the state's high court to reconsider and reverse Willie Nash's conviction or send him back to the lower court for resentencing.

Cheryl Corley, NPR News.

(SOUNDBITE OF ISRAEL NASH'S "RAIN PLANS") Transcript provided by NPR, Copyright NPR.