The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Fiscal Policy
BILL: CS/CS/SB 7016
INTRODUCER: Fiscal Policy Committee; Appropriations Committee on Criminal and Civil Justice; and
Criminal Justice Committee
SUBJECT: Department of Corrections
DATE: April 14, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Parker Stokes CJ Submitted as Committee Bill
1. Atchley Harkness ACJ Fav/CS
2. Parker Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 7016 amends s. 944.35, F.S., providing criminal penalties for any volunteer in or
employee of a contractor or subcontractor of the Department of Corrections (DOC) or private
corrections facility who engages in sexual misconduct with specified inmates or offenders. The
bill defines “volunteer” to mean a person registered with the DOC or a private correctional
facility who is engaged in specific voluntary service activities on an ongoing or continual basis.
A person who commits this offense commits a third degree felony.1
The bill provides the following exceptions:
Any employee, volunteer, contractor or subcontractor, of the department or private
correctional facility who is legally married to an inmate or offender under supervision.
Any employee, volunteer, or employee of a contractor or subcontractor who has no
knowledge, and would have no reason to believe, that the person with whom the employee,
volunteer, or employee of a contractor or subcontractor has engaged in sexual misconduct is
an inmate or offender under supervision.
1 A felony of the third degree is punishable by a term of imprisonment not exceeding 5 years and a $5000 fine, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084, F.S.
BILL: CS/CS/SB 7016 Page 2
This bill transfers all power, duties, functions, records, personnel, associated administrative
support positions, property, administrative authority, and administrative rules relating to private
correctional facilities by a type two transfer, as defined in s. 20.06(2), F.S.,2 from the Department
of Management Services (DMS) to the DOC.
The bill contains provisions relating to existing contracts, agreements, bonds, certificates of
participation and other instruments of indebtedness.
The bill amends s. 287.042, F.S., to remove the ability of DMS to enter into contracts for the
designing, financing, acquiring, leasing, constructing, or operating of private correctional
facilities.
The bill may have a positive indeterminate fiscal impact on the DOC (indeterminate positive
prison bed impact). The provisions of the bill relating to the transfer of oversight of private
correctional facilities will likely have no fiscal impact due to the type two transfer provisions.
The bill makes technical and conforming changes.
The bill is effective October 1, 2023.
II. Present Situation:
Sexual Misconduct with Inmates
Section 944.35, F.S., states that any employee of the DOC or a private correctional facility as
defined in s. 944.710, F.S., who engages in sexual misconduct with an inmate or an offender
supervised by the DOC in the community, without committing the crime of sexual battery,
commits a third degree felony.3
The consent of such inmate or offender to any act of sexual misconduct may not be raised as a
defense to a prosecution under this paragraph.4 This paragraph does not apply to any employee
of the DOC or any employee of a private correctional facility who is legally married to an inmate
or an offender supervised by the DOC in the community. It also does not apply to any employee
who has no knowledge, and would have no reason to believe, that the person with whom the
employee has engaged in sexual misconduct is an inmate or an offender under community
supervision of the DOC.5
“Sexual misconduct” means oral, anal, or female genital penetration by, or union with, the sexual
organ of another or the anal or female genital penetration of another by any other object, but does
2
Section 20.06(2), F.S., states that a type two transfer is the merging into another agency or department of an existing agency
or department or a program, activity, or function thereof or, if certain identifiable units or subunits, merging into an agency or
department of the existing agency or department with certain identifiable units or subunits, programs, activities, or functions
removed therefrom or abolished.
3
Section 944.35(3)(b)2., F.S.; A felony of the third degree is punishable by a term of imprisonment not exceeding 5 years
and a $5000 fine punishable as provided in s. 775.082, s. 775.083, or s. 775.084, F.S.
4
Section 944.35(3)(b)3., F.S.
5
Section 944.35(3)(b)4., F.S.
BILL: CS/CS/SB 7016 Page 3
not include an act done for a bona fide medical purpose or an internal search conducted in the
lawful performance of the employee’s duty.6
Sexual misconduct by corrections officers and other prison staff can violate the Eighth
Amendment, regardless of whether physical force is used.7 Under federal and state law, forms of
coerced sexual contact are prohibited by general criminal laws that apply to all persons
regardless of the setting in which the coerced sexual contact occurs. Forty-one states, including
the District of Columbia and the federal government, have laws specifically prohibiting
criminalizing certain types of sexual misconduct in prisons.8 Florida is one of the states that
criminalizes sexual contact between correctional employees of the DOC and a person under the
DOC’s custody.9
Rule 33-208.001(5), F.A.C., governs the conduct of volunteers and non-DOC employees. The
rule states that all rules, directives, and policy statements governing conduct of the DOC
employees apply to volunteers and non-DOC employees, violation of which may result in
immediate removal from the institution or office and future denial of access to such area by the
Administrator, Warden, Officer-in-Charge, or Supervisor.
Sexual Misconduct Between Detention Facility Employees and Inmates
Section 951.221, F.S., states that any employee of a county or municipal detention facility or of a
private detention facility under contract with a county commission who engages in sexual
misconduct, as defined in s. 944.35(3)(b)1., F.S., with an inmate or an offender supervised by the
facility without committing the crime of sexual battery commits a third degree felony.10 The
consent of an inmate to any act of sexual misconduct may not be raised as a defense to
prosecution under this section.11
Transfer of Private Prison Oversight
The DMS,12 is responsible for overseeing the State’s private prison system and ensuring private
correctional facility compliance with contract terms and conditions.13
The DMS currently oversees private prisons in Florida and has the powers, duties, and functions
to contract.14 The Bureau of Private Prison Monitoring at DMS currently contracts with three
providers, CoreCivic of Tennessee, LLC (CoreCivic); GEO Group, Inc., (GEO); and
6
Section 944.35(3)(b)1., F.S.
7
Sconiers v. Lockhart, 946 F.3d 1256, 1267 (11th Cir. 2020) (holding the Eight Amendment protects prisoners from sexual
abuse, even when there is no serious physical injury).
8
United States General Accounting Office, Women in Prison, Sexual Misconduct by Correctional Staff, p. 5 (June 1999)
available at https://www.gao.gov/products/ggd-99-104 (last visited March 3, 2023).
9
Section 944.35, F.S.
10
A felony of the third degree is punishable by a term of imprisonment not exceeding 5 years and a $5000 fine punishable as
provided in s. 775.082, s. 775.083, or s. 775.084, F.S.
11
Section 951.221, F.S.
12
Bureau of Private Prison Monitoring is a business operation within the Department of Management Services. This
information is available at https://www.dms.myflorida.com/business_operations/private_prison_monitoring (last visited
March 6, 2023).
13
Section 957.04, F.S.
14
Section 287.042, F.S.
BILL: CS/CS/SB 7016 Page 4
Management and Training Corporation (MTC), to operate and manage the seven private
correctional facilities throughout the state.15
Section 287.057, F.S., provides that state agencies are responsible for enforcing the terms and
conditions of all contracts and ensuring that deliverables are appropriately satisfied. In Florida,
the Bureau of Private Prison Monitoring at DMS is responsible for the oversight and contractual
compliance for the private prison system with the state.16
In June 2022, the Florida Auditor General conducted an operational audit of the DMS on the
oversight of the Bureau of Private Prisons.17 The audit found seven areas of deficiency.18
III. Effect of Proposed Changes:
The bill amends s. 944.35, F.S., providing criminal penalties for any volunteer or employee of a
contractor or subcontractor of the DOC or private correctional facility who engages in sexual
misconduct with an inmate. Any person who commits such offense commits a third degree
felony.19 This language is consistent with the intent of Rule 33-208.001(5), F.A.C.20
The bill defines the term “volunteer” to mean a person registered with the DOC or a private
correctional facility who is engaged in specific voluntary service activities on an ongoing or
continual basis.
15
Dixon, Matt, (2013, December 16). New contracts give private prison giant nearly 80 percent of Florida’s private prison
market. Retrieved from The Florida Times-Union: https://www.jacksonville.com/story/news/2013/12/16/new-contracts-give-
private-prison-giant-nearly-80-percent-floridas-private/15805432007/ (last visited March 3, 2023).
16
In accordance with ch. 957, F.S., the Bureau of Private Prison Monitoring is responsible for entering into contracts for the
design, construction, and operation of privately operated correctional facilities.
17
Florida Auditor General, Department of Management Services Oversight of Private Correctional Facilities Operational
Audit. Report No. 2022-23 (June 2022) (on file with the Senate Committee on Criminal Justice).
18
Id. The Florida Auditor General conducted an operational audit of the Department of Management Services finding there to
be issues with noncompliance, maintenance, safety, and staffing. The audit found seven areas of deficiency with the Bureau
of Private Prison Monitoring at DMS: (1)The Bureau did not always issue written notices of noncompliance or document the
basis for not issuing notices of noncompliance to private prison providers when noncompliance was identified; (2) The
Bureau had not established policies and procedures for monitoring provider maintenance activities at private correctional
facilities and monitoring tools were not always completed; (3) The Bureau policies and procedures for, and documentation
of, review of on-site nursing consultant activities were identified as needing improvement to demonstrate that health care
monitoring services at private correctional facilities are provided in accordance with contract terms; (4) The Bureau
monitoring of private correctional facility staff was identified as needing enhancement to ensure that appropriate and
qualified staff were assigned to provide for and maintain security, control, custody, and supervision of inmates; (5) Bureau
efforts to review and verify the accuracy and completeness of private correctional facility provider incident reporting need
enhancement to ensure that incidents are correctly reported and appropriately handled in accordance with applicable contract
provisions and Bureau policies and procedures; (6) The Bureau did not ensure that private correctional facility providers
obtained and maintained required insurance coverage; and (7) The Bureau was identified as needing improvement to ensure
that audited provider Inmate Bank and Commissary financial statements were timely received and appropriately reviewed.
19
A felony of the third degree is punishable by a term of imprisonment not exceeding 5 years and a $5000 fine as provided in
s. 775.082, s. 775.083, or s. 775.084, F.S.
20
Rule 33-208.001(5), F.A.C. states that “all rules, directives, and policy statement governing conduct of Department of
Corrections employees apply to volunteers and non-FDC employees, violation of which may result in immediate removal
from the institution or office and future denial of access to such area by the Administrator, Warden, Officer-in-Charge or
Supervisor.”
BILL: CS/CS/SB 7016 Page 5
The bill prohibits any employee of the DOC or a private correctional facility or any volunteer in,
or any employee of a contractor or subcontractor of, the DOC or a private correctional facility
from engaging in sexual misconduct with an inmate or an offender supervised by the DOC in the
community, without committing the crime of sexual battery. A person who commits this offense
commits a third degree felony.
The bill provides exceptions. Specifically, the bill excludes:
Any employee, volunteer, or employee of a contractor or subcontractor of the DOC or any
employee, volunteer, or employee of a contractor of subcontractor of a private correctional
facility who is legally married to an inmate or an offender supervised by the department in
the community.
Any employee, volunteer, or employee of a contractor or subcontractor who has no
knowledge, and would have no reason to believe, that the person with whom the employee,
volunteer, or employee of a contractor or subcontractor has engaged in sexual misconduct is
an inmate.
The bill transfers oversight from the DMS to the DOC. The bill transfers all powers, duties,
functions, records, personnel, associated administrative support positions, property,
administrative authority, and administrative rules relating to private correctional facilities by a
type two transfer, as defined in s. 20.06(2), F.S.,21 from the DMS to the DOC. The DMS must
ensure any unexpended funds or trust funds are transferred. The bill contains provisions relating
to binding contracts and interagency agreements.
The bill provides that the type two transfer shall not affect any existing agreements, bonds,
certificates, or other instruments of indebtedness entered into by DMS and provides provisions
related to such undertakings by the DMS.
The bill amends s. 287.042, F.S., to remove the ability of DMS to enter into contracts for the
designing, financing, acquiring, leasing, constructing, or operating of private correctional
facilities.
The bill amends ss. 943.13, 944.02, 944.115, 944.72, 944.8041, 945.215, 946.504, 957.04,
957.06, 957.07, 957.08, 957.12, 957.14, 957.15, 957.16, and 394.9151, F.S., conforming
provisions to changes made by the act.
The bill is effective October 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
21
Section 20.06(2), F.S., provides that a type two transfer is the merging into another agency or department of an existing
agency or department or a program, activity, or function thereof or, if certain identifiable units or subunits, programs,
activities, or functions are removed from the existing agency or department, or are abolished, it is the merging into an agency
or department of the existing agency or department with the certain identifiable units or subunits, programs, activities, or
functions removed therefrom or abolishes.
BILL: CS/CS/SB 7016 Page 6
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill may have a positive indeterminate fiscal impact on the DOC (indeterminate
positive prison bed impact). The bill may increase the number of people convicted under
this offense because it expands the crime to include volunteers, contractors, and
subcontractors.
The provisions of the bill relating to the transfer of oversight