Case Explained: A bill to keep child sex offenders on probation scrambles party lines – Legal Perspective

In aiming to stop anyone who is convicted of dangerous crimes against children from ever being able to terminate or modify their terms of probation, Republican Sen. Janae Shamp has said her legislation will only apply to the “worst of the worst.” But attorneys, judges and even some of the criminals themselves say it’s not as black and white as Shamp says, and her bill would remove important tools from prosecutors and the courts.

To that end, they’ve set out to  help lawmakers understand the nuance on a topic that is politically toxic. 

Arizona law includes automatic sentencing enhancements for anyone who commits certain crimes that involve a person under the age of 15, those enhancements are called dangerous crimes against children, often called DCAC for short. 

For people who commit crimes such as child sex trafficking, sexual assault, attempted murder and manufacturing methamphetamine, these come with automatic sentencing enhancements that include 35 years to natural life. If they do ever get out, they’re more often than not released on lifetime probation. 

However, Shamp has argued on the floor and in committee that those who commit the “worst of the worst” are appealing their lifetime probation, thus the need for Senate Bill 1092, which has passed out of both chambers with support and opposition from members of both parties. The legislation removes the ability for individuals who are convicted of a dangerous crime against children from ever being able to petition to terminate or modify their probation term, including lifetime probation. 

But attorneys and a retired judge are sounding the alarm on this bill and a series of others that they believe eliminate judicial discretion and could create a whole new host of issues. 

Then there are those who live in the nuance. 

“The internet is going to kill our social being and I really, I cannot believe I’m caught up in this,” Kim Drogosz told the Arizona Mirror. 

Drogosz is part of a group of women who have been showing up at the Capitol advocating against the bill. The group, known to many at the Capitol as “the Moms,” have one thing in common: connection to the DCAC laws. 

DCAC also is applied to any case that involves a person under the age of 15, even if no true harm came to a child. For example, in cases where an officer is posing as a 14-year-old in a sting operation, DCAC statutes would be activated. 

Drogosz says that, in 2021, her 19-year-old autistic son clicked a link that was sent to him via the Discord chat platform. Clicking the link surreptitiously  downloaded various images of legal and illegal pornography to his computer. Then in 2023, a SWAT team came knocking at her Gilbert home after the National Center for Missing and Exploited Children received tips about the photos from Google.

Child sexual abuse material, often referred to as CSAM, are often tagged by NCMEC and other law enforcement agencies with unique hashes that allow tech companies and others to identify them.  

Her son is now incarcerated and faced sentencing enhancements under the DCAC statutes, as some of the images found were of children under the age of 15. Now she is worried that once her 24-year-old son completes his sentence, he will be on probation until he dies if Shamp’s bill passes. 

Then there are the attorneys and judges who are worried about what this change could ultimately mean for the courts and cases in the long-term. 

Vicki Lopez, an attorney with Arizona Attorneys for Criminal Justice, said judges have discretion to use the possibility of getting off lifetime probation as a way to encourage offenders to stay on the path to rehabilitation. If that is removed, she said, the courts won’t have any tools left to do that. 

She also wonders what the long-term impacts will be for the state and counties for all the younger offenders at the ages of 18 or younger who will now be on probation for many decades if the bill is signed. A fiscal note attached to the bill said costs will likely be higher, but budget analysts couldn’t figure out by how much. 

At the end of the day, it may just come down to politics. 

“We’re testifying, but because of the political Republican fear of an election year, these people are truly trying to stay away from bills that would hurt them in an election,” Drogosz said. 

Claims of misinformation 

As Shamp’s bill has made its way through the legislative process, she has consistently shot back at people like Drogosz and Lopez who have voiced concerns that bills like SB1092 would have an impact far greater than she says. 

“We’re talking about DCAC. We’re talking about the worst of the worst,” Shamp said last month when defending her bill on the Senate floor. “The fact of the matter is, if you commit a DCAC and you are put on probation, probation is in lieu of being put in prison.” 

But attorneys the Mirror spoke with said that isn’t always the case. 

Sex offenders who commit rape and sexual assault against children are already facing mandatory sentences under the state’s DCAC statutes. If they get out of prison, they already face lifetime probation. 

“These people are already in prison,” Lopez told the Mirror. 

The sex offenders who are out and on lifetime probation also face a litany of challenges if they try to lessen their  probation term, and the vast majority of those appeals are rejected. In Maricopa County alone, probationers have 15 different criteria they must consider when petitioning for early removal, including a polygraph test, completion of other court ordered treatment and more. 

Additionally, those with the clinical diagnosis of pedophilia, psycopathy and sexual sadism will not even be considered by Maricopa County Adult Probation for early termination or modification. 

Shamp did not respond to the Mirror’s request for comment for this story. 

“There absolutely are monsters that have been convicted under these statutes,” Sen. Analise Ortiz, D-Phoenix, said on the Senate floor. But  taking away discretion from judges and probation officers would create unjust issues for due process, she said, explaining her opposition to SB1092. 

Shamp’s bill originally had a retroactive effect and an emergency clause that would have meant it would impact every case the moment Gov. Katie Hobbs signed it into law. That retroactivity clause was removed and the bill did not pass by the needed two-thirds supermajority to activate the emergency clause. 

Throughout the debate over the proposal, claims of misinformation have flowed both ways. 

“Advocacy is a right, misrepresentation is not,” Beth Goulden, chairwoman of the Arizona Sex Offenders Management Board, said in a meeting last month. “The credibility of this board will be protected.” 

At issue was a packet distributed by the “Moms” that included quotes from one of the board meetings where they discussed several bills at the Capitol, including Shamp’s. The board took issue with the packet appearing to resemble an official communication from the board. 

The packet clearly noted that it was not from the board, though it does highlight their votes on objecting to the proposed legislation. At the meeting, the board confirmed that it opposes Shamp’s bill, though it has not officially registered that opposition on the legislature’s request to speak system. 

‘Is this law needed?’ 

While the bill has been working its way through the legislature, headlines began popping up about a case of a man who is trying to appeal his lifetime probation. 

Josh Jacobson is a former teacher and soccer coach who admitted to molesting his 12-year-old student, Kayleigh Kozak, nearly two decades ago and received a plea agreement where he received lifetime probation, 6 months in jail and $25,000 in restitution to Kozak. 

Now, Jacobson is attempting to terminate his lifetime probation, arguing that he has rehabilitated himself. Prosecutors and Kozak argue that he has refused to submit to state-ordered sex offender risk assessments and is still a risk that needs to be monitored. 

Shamp and Kozak have a history of writing laws together, having passed a law in 2022 that allows for the victim of sexual abuse to file for an injunction against harassment at the time the probation period ends of their abuser. 

“Is this law needed? The answer is no. What is it going to fix? Nothing is broken,” Robert Campos, a former La Paz and Maricopa County prosecutor who is representing Jacobson, told the Mirror. He posited that Shamp and Kozak are pushing the legislation in direct response to Jacobson’s quest to end his lifetime probation.

Kozak did not respond to the Mirror’s request for comment. 

Campos said that having now been on both sides of the issue as a prosecutor and a defense attorney, he hasn’t seen any issues with how lifetime probation is currently being implemented. Enacting  SB1092 could take important leverage away from prosecutors in the future, he said. 

“Lifetime (probation) is always a good option for prosecutors,” Campos said, as it can be used to encourage a plea to avoid a trial where victims may not want to take the stand. But if offenders know that there is no chance of ever reducing that lifetime probation, it may force more cases to go to trial. 

Additionally, those deals are not rubber-stamped by the courts, Campos said. 

“They don’t just accept deals, they review them,” Campos said, with judges often rejecting lenient deals on sex crime cases. In Jacobson’s case, the plea also included discretion for the court to sentence him to prison at any time. 

Campos and Jacobson argue that, after nearly 20 years, Jacobson has proven his ability to abide by the court’s orders and the terms of the probation which includes strict measures on how and when the former teacher can interact with minors. 

The judge in the case has delayed her final decision on Jacobson’s bid to reduce his probation. Regardless of what she decides,  Jacobson will still be registered as a sex offender in the state. 

Clicking a link 

During a hearing on Shamp’s bills in the House Judiciary Committee, Shamp directly called out Drogosz and the other “Moms,” saying that cases where someone clicks a link without knowing what it is and then is prosecuted “does not happen.” 

She suggested that any prosecutor who does pursue those cases should be charged with “prosecutorial misconduct.” 

The Maricopa County Attorney’s Office said it has not taken a stance on Shamp’s SB1092. When asked about Shamp’s comments regarding “prosecutorial misconduct” and how MCAO charges CSAM cases, a spokesperson said it “is rare that anyone accidentally downloads these illegal images.” 

“In principle, the Maricopa County Attorney’s Office does not charge people for a random stray image unless the person accused was involved in the creation of the child sex abuse material,” MCAO said in a statement to the Mirror. “Rather, what MCAO typically sees in the CSAM cases that we charge are multiple files — sometimes in the hundreds — often organized into folders and with explicit names, so there is no mistaking the type of content contained in the videos or photos.” 

MCAO also said that the “burden of proof never falls on the defendant” to prove they accidentally downloaded the images. 

“Instead, prosecutors must be able to prove that the files were knowingly downloaded,” the statement continued. “If we cannot do so beyond a reasonable doubt, there is no reasonable likelihood of conviction, and we do not charge the case.” 

Attorneys the Mirror spoke with could not speak about the specifics of cases, due to attorney-client privilege, but told the Mirror that there have been cases locally where they’ve had to show how their clients clicked on a link that looked legitimate but ended up being malicious CSAM. 

Scammers have long used the technique to insert malware and other malicious software into people’s phones, computers and other electronic devices. 

While the attorneys gave examples of cases that go to trial, the vast majority of cases never see trial and instead result in plea agreements. 

In the case of Drogosz’s son, she said she was told that, even with evidence showing her son’s diagnosis of autism and testimony from him regarding the link, it would still be better to just take a plea. 

“In that moment, the attorney said (the autism diagnosis) wouldn’t help unless my son was drooling on himself,” Drogosz said. A test later revealed that, even though her son was 19, his mental age was likely around the age of 14 when he downloaded the images. “You’re taking and destroying a young person’s life, who is neurodivergent with autism, and setting him up for failure for the rest of his life.” 

During that same House Judiciary Committee hearing where Shamp called out the “Moms,” she presented a legal memo drafted up by legislative attorneys in which they claimed that no one could be prosecuted for unknowingly clicking a link that downloads CSAM. 

But AACJ says that the memo is based on a narrow focus on definitions of “knowledge” and “possession” that largely ignores how these cases are actually tried. Arizona law allows for conviction based on what is known as “constructive possession,” where the state can use the presence of CSAM alone to try to prove possession and intent. 

For example, if a person is a prohibited possessor and cannot have a gun, but they allow someone else to bring a gun into their car and leave it there, prosecutors could argue that person possessed the  gun and charge them. 

In the House Judiciary Committee, SB1092 scrambled typical political alliances to win approval. 

“I don’t believe that this bill would really impact those who accidentally open a link or click a link. I don’t think that to be the case,” Rep. Alma Hernandez, D-Tucson said, adding that in light of revelations about Cesar Chavez and stories of her father’s own admissions of being sexually abused, she had to support the bill. 

“This is an issue that has substantial evidence on both sides,” Rep. Khyl Powell, R-Gilbert, said when explaining his opposition. “This bill, in my opinion, takes away the discretion of the judicial (branch of government).” 

At least one lobbyist the Mirror spoke with said that some lawmakers have voiced concern about coming out against the legislation in an election year where being tough on sexual related crimes is a top priority among constituents. 

Some Democrats had their votes on similar controversial legislation used against them in campaigns in the past. 

Drogosz said she is just trying to make sure she stays safe while speaking her mind on the legislation. She said she has installed cameras around her house and worries about how people online will perceive her advocacy. 

“I thought the Republican Party was supposed to be about less government involvement?” Drogosz said. “All they keep doing is making policies and statutes, the same as my HOA. Everywhere I look, there is enforcement, and I question that. Where is my freedom with all these lawmakers making all these crazy ass laws?” 

Shamp’s bill has one high-profile opponent: former U.S. Attorney for the District of Arizona John S. Leonardo, who previously served as a judge in Pima County. 

In a letter he sent to Hobbs urging her to veto SB1092 and other similar bills by Shamp and others, he wrote that the legislation would be a costly fix to problems that don’t actually exist. 

“No evidence has been presented demonstrating a systemic failure that would justify such sweeping statutory changes. In the absence of a clearly identified problem, these bills propose a solution that risks creating new and more serious issues,” Leonardo wrote. “Additionally, these proposed measures are likely to increase incarceration rates, placing a significant financial burden on taxpayers. Community supervision requires far fewer resources than incarceration. Expanding the prison population for technical or low-level violations is a costly approach that does little to improve term outcomes.” 

Leonardo also argued that the bills weaken incentives for rehabilitation. 

“Most importantly, these bills weaken the rehabilitative purpose of probation. Effective supervision relies on incentives, graduated sanctions, and individualized responses – not inflexible mandates,” Leonardo said. “Removing discretion will make it harder for individuals to successfully complete probation and reintegrate into the community.”