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Fourth Circuit Holds Private Prison Guards to be Under Supervision of DOJ

Some enterprising prison guards at the River Correctional Institution set up a profitable smuggling operation for several years, accepting bribes from prisoners to smuggle cell phones and other contraband such as tobacco products into the Winton, North Carolina prison. At least one prisoner at that institution, Kenneth Dodd, paid thousands of dollars to those guards, employed by the GEO private prison group.

The contraband items were found after a search of the prisoner’s cell and their discovery triggered an investigation by the Inspector General of the Department of Justice (DOJ). Of course, whenever DOJ officials or their contractors are embarrassed by such blatant corruption, they generally reserve the most serious punishment for the prisoners involved, not the corrupt guards, who are generally fired and not prosecuted.

In this instance Mr. Dodd was prosecuted for his part in the smuggling operation for violation of 18 U.S.C. 201(b)(1)(C) and 18 U.S.C. 371, and pleaded guilty to bribing a private correctional officer. His sentence was enhanced by the district court judge under U.S.S.G. Section 2C1.1(b)(3), because the offense involved a “public official” in a “sensitive position.  This distinction is significant because private prisons routinely seek to avoid liability under federal statutes that cover “state actors” such as prison guards and other prison officials.

Dodd made this very argument on appeal, trying to avoid the four-level enhancement by arguing that GEO guards were not public employees, and the enhancement did not apply.  The court, however, disagreed, in a decision that will surely be of interest to prisoner rights attorneys across the country.

According to the Fourth Circuit Court of Appeals, “private correctional officers operating under the authority of the Federal Bureau of Prisons occupy a sensitive position

For the purposes of U.S.S.G. Section 2C1.1(b)(3,” reasoning that the “men and women who occupy these positions wield the coercive power of the state to maintain order and safety among the populations that they protect.”  My suspicion is that the GEO group of private prisons will not be too happy about this decision, as it potentially exposes them to millions of dollars of potential liability from prisoner lawsuits.  Then again, they can afford to pay.



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