Should a contracted detention officer working for a privately owned prison be considered a high-ranking public official? Is such a detention officer in a decision-making or sensitive position?
Those are the questions a panel of judges for the Fourth Circuit Court of Appeals will consider this Friday in Richmond, VA, when they hear oral arguments stemming from a case out of North Carolina.
The defendant, Kenneth Dodd, was a 33-year-old inmate at Rivers Correctional Institution, a private facility in Winton, N.C. After getting caught accepting cell phones and cigarettes smuggled into the prison by a detention officer, Dodd pled guilty to bribing a public official. In his pre-sentence investigation report, his probation officer recommended a sentencing enhancement, arguing that the detention officer was a public official in a high-level decision-making or sensitive position. Over Dodd's objection, the district judge accepted the probation officer¹s recommendation and tacked on an additional 37 months to his existing prison term, rather than the 24 to 30 months he would have gotten without the sentencing enhancement.
In the grand scheme of things, the extra 13 months won¹t make a huge impact on the lifespan of Dodd¹s time in prison. (At the time of the bribery, he was serving 24 years on drug and racketeering charges.) Still, argues his court-appointed lawyer Joshua B. Howard, the judges' upcoming ruling will impact past and future cases involving the way privately contracted detention officers' roles are defined.
Pointing out that Dodd had been exchanging sext messages with the detention officers, Howard questioned whether that is typical behavior of an official in a decision-making or sensitive position.
"The question is, Gosh, if you can outsource the job to these contractors, how 'sensitive' can it be?" said Howard. "If a private contract prison guard is considered a high-ranking or sensitive position, then who isn't? Surely the federal behemoth has got to stop somewhere."
In court documents, U.S. government lawyers cited precedent ruling from another circuit arguing that a "prison guard has the authority and the ability to directly and significantly influence inmates' lives and the entire facility¹s safety with the decisions he or she makes."
The district judge agreed, noting, "one doesn¹t need to linger long when thinking about the sensitive nature of guarding in a prison setting and the importance of that position, the sensitiveness of that position in dealing with inmates, in discharging duties, in promoting respect, in maintaining safety, and how undermining this type of conduct was."
Howard believes that argument gives detention officers too much credit, and he notes that the Sentencing Commission's guideline manual refers to prosecutors, judges and law enforcement officers as examples of positions related to the statute. "Those people are all sworn to uphold something. The prison guards haven¹t sworn to uphold anything," said Howard.
The attorney added: "I hope liberals and conservatives can agree on this issue. Liberals might regard it as piling on, and conservatives might regard it as a violation of federalist principles."