Brian K. Burns was sworn in as a Mississippi Circuit Court judge in early January, one of the last appointments made by outgoing hardline Republican Governor Phil Bryant.
Before becoming a judge, Burns had prosecuted just 11 cases in the entirety of his legal career, leading fellow attorneys from his district to register “grave concerns about Burns’s lack of trial experience,” according to his hometown newspaper. In one of those cases, he’d succeeded in sending an African-American man to jail for 12 years merely for possessing a cellphone in a local jail—a sentence so extreme that Mississippi Supreme Court Justice Leslie King wrote that it “seems to demonstrate a failure of our criminal justice system on multiple levels.”
The defendant, Willie Nash, is a 39-year-old father of three currently serving his decade-plus sentence in one of Mississippi’s worst prisons. By any reasonable reading of the trial court record, Nash’s real crime seems to have been a lack of detailed knowledge about Mississippi’s lengthy list of codes and statutes. While in the custody of the Newton County jail after a misdemeanor arrest in August 2017, Nash asked a guard to charge his cellphone. The officer’s testimony later affirmed that Nash handed over his smartphone “voluntarily,” as if he “wasn’t trying to hide anything,” and even “said thank you”—unlikely behavior for someone knowingly committing a felony—before also providing his phone’s passcode. Officers later discovered, according to court records, that Nash’s last outgoing text had been to his wife, informing her that he was “in jail.”
Nash was then charged with violating a law prohibiting possession of any “unauthorized electronic device, cell phone or any of its components or accessories” in correctional facilities, a statute that carries a penalty of three to 15 years.
The Mississippi Supreme Court upheld the 2018 decision last week, noting that while the lower court’s sentence against Nash’s is “obviously harsh,” it still “falls within the statutory range.” Presiding Justice King wrote a special concurring opinion “to voice [his] concern over this case as a whole.”
In it, the jurist notes that “Nash’s behavior was that of a person who did not know” he was not supposed to have the phone, “as he voluntarily showed the officer his phone and asked the officer to charge it for him.” He goes on to point out that it is likely the jail’s “booking procedure was not followed”—Nash’s intake officer was never called to testify—which explains how Nash entered the jail with a “large smartphone that would have likely been impossible to hide during a strip search.” The jurist responds to the lower court’s citation of Nash’s two previous burglary convictions by noting that Nash had remained out of trouble for a decade after he’d served seven years for the most recent conviction in 2001, which “evinces a change in behavior.” While King makes clear he agrees with the state Supreme Court’s decision establishing the legality of Nash’s sentence, his opinion questions the morality of Judge Mark Sheldon Duncan harsh sentence and prosecutor Burns’s pursuit of it.
“[Nash] has a wife and three children who depend on him,” King writes. “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.”
That’s not how prosecutors and judges in Mississippi have used that discretion.
A Justice Department report ranks the state’s incarceration rate as the third highest in the country, after Louisiana and Oklahoma. Even as the national prison population has been on the decline, the number of people imprisoned in Mississippi has increased over the last five years, and currently stands at roughly 19,000.
One reason for that rise may be the number of former prosecutors who then ascend to Mississippi’s bench—from which they continue to prosecute. Like Burns, Nash’s sentencing judge, Mark Duncan, is a former prosecutor, who served as District Attorney for Mississippi’s Eighth District for nearly 15 years.
Today, the state that lynched the most African-Americans now locks up its black citizens. According to a 2018 ACLU report, 1 in 30 black men in Mississippi is in jail, while a 2019 report from FWD.us finds that “1 in 7 black Mississippians has a felony conviction.”
“This is a guy who has no history of violence,” said Robert McDuff, director of the Mississippi Center for Justice’s Impact Litigation Project. “His only prior criminal convictions were burglary convictions that were nearly 20 years old or older. I mean this guy's obviously not a career criminal. He was in jail on a misdemeanor charge when this cellphone was found…. So, yeah, clearly he's not a violent person—he’s not a danger if he's on the streets. It's just ridiculous to be sentencing him to 12 years in prison,”.
McDuff was also a defense lawyer for Curtis Flowers, a black Mississippi man who has been prosecuted six times for the same crime by Doug Evans, a white district attorney. In December, after 23 years in prison, Flowers’s most recent conviction was overturned by the U.S. Supreme Court, which found that Evans and his team had undertaken a “relentless, determined effort to rid the jury of black individuals.”
“In Mississippi we are facing a crisis of overcrowding in the prisons,” McDuff told me. “There are not enough guards to supervise the prisoners. This recently has broken out in violence, in chaos, and conditions that are unsafe both for prisoners and for staff. And a large part of the reason for this is because the judges are sending nonviolent people like Mr. Nash to prison when they just don't need to be there.”
Nash has been imprisoned since December 2019 in the South Mississippi Correctional Institution, which ProPublica described in a 2019 report as “a violent tinderbox.” One inmate set another on fire last August, leaving him with second-degree burns. Another inmate described a separate incident in which prisoners begged guards to stop a fight that ultimately ended in the death of an inmate. “We had beat on the cell doors for hours, trying to summon help… all the officer in the tower would do is yell over the P.A. speaker for us to ‘shut the hell up.’”
The report went on to describe a place where danger is a constant threat, as “the prison struggles to meet the fundamental duties of a correctional facility, with surging violence and, now, a lockdown barring visits entering its seventh month. Rather than counting inmates, as required, some guards are reportedly falsifying those counts, an internal prison memo says. The state has sharply cut its spending on prisons over the last few years. Along the way, the number of guards at the three state-run prisons has plummeted, from 905 in July 2017 to 627 two years later, even as the number of inmates has remained the same. Vacancies abound, largely because the pay is so low. South Mississippi Correctional Institution, known as SMCI, now has an inmate-to-correctional officer ratio of 23 to 1, far higher than that of other states or the federal prison system.”
Last week, rappers Jay-Z and Yo Gotti filed a federal lawsuit against Mississippi Department of Corrections officials, citing inhumane conditions in the state’s overpacked prisons. “The units are subject to flooding. Black mold festers. Rats and mice infest the prison. Units lack running water and electricity for days at a time,” the lawsuit states about Mississippi’s oldest prison, established in 1904 to house “criminal negroes.” Videos confirming those horrific conditions have reached the outside—telegraphed by inmates using contraband cellphones. “Please try to help us,” one inmate pleads in the footage. “Let the world know.”
Three inmates were slain at Parchman and two more in other state prisons during the first week of 2020, when Burns was officially sworn in as a judge. The new jurist told a local news outlet that in his new job, he planned to rely on one tool above all others. “Prayer,” Burns said. “Lean on the lord. Cast all your burdens upon him. Pray, pray, pray. He will provide the answer.”
It was Duncan—the sentencing judge who told Nash he should “consider himself fortunate” he’d only been sentenced to 12 years, given his long-ago non-violent convictions—who administered the oath to Burns, Nash’s zealous prosecutor. At the ceremony, Duncan deemed Burns a “highly intelligent, sharp lawyer” who will make an “outstanding circuit judge.” Duncan said that he and Burns had spoken about their shared Christian faith, and how God had “put us there to use the gifts he has given us to administer to those who are around us. Brian and I talked and he agreed with that assessment. He told me he trusted God to put him wherever he was supposed to be.”
The judge added, “We’ve enjoyed a lot of great conversations about golf and time on the golf course as well. Golfers will tell you that you can find out a lot about a person on the golf course. Golf has a way of exposing a person’s true character. As much as legal skills are required to do the job of judge, a person’s character may be even more important.”