Is Investigating a School Sexting Incident the Same as Possessing Child Porn? A Judge Says No.
Bradley Bass' case in Colorado says a lot about just how powerful prosecutors are.
A Colorado school administrator will no longer face child pornography charges for investigating a student sexting incident, a local judge ruled late last month, ending a legal odyssey that raised broader questions about prosecutorial discretion, overcriminalization, law enforcement accountability, and coercive plea bargaining.
Bradley Bass of Brush, Colorado, was facing up to 12 years in prison, a spot on the sex offender registry, and an end to his career. But that potential punishment never fit the alleged crime, particularly when considering that no one involved in the case, including the prosecution, posited Bass meant any harm when he conducted a probe in accordance with school board policy.
There was "no evidence of deceit or concealment," wrote Morgan County District Court Judge Charles M. Hobbs, and "no improper motive." That was clear from the start of the case, though it didn't deter prosecutors.
Last year, Bass learned that explicit images of a female student were circulating among male students. School Resource Officer (SRO) Jared Barham first received that tip; he was temporarily working nights and declined to investigate or share the information with other officers.
So Bass investigated the complaint. "The school administration prioritized this as a high-priority matter, because their concerns are [the] best interests of the students," says Michael Faye, who represented Bass. "He basically did the officer's work for him."
Bass' probe turned up risqué pictures saved in Snapchat, a photo-sharing app where images typically disappear after receipt. To collect evidence, he took pictures of the photos on his work cellphone, uploaded them to a school server, and says he told the boys to delete the images. A forensic investigation concluded that Bass did not access the photos after the fact, and the female student in question maintained that Bass did nothing wrong.
He was arrested, booked at the Morgan County Detention Center, and charged with four counts of sexual exploitation of a child anyway. There's an interesting carve-out to that law: It "does not apply to peace officers or court personnel in the performance of their official duties." Put differently, Barham opted not to do his job, so Bass was arrested for doing it for him. It wasn't necessarily an outlier moment. "We had testimony at the hearing that this SRO had multiple times stated to different teachers, 'Hey, it's easier if you guys do this kind of stuff. If I get involved, it takes it up a notch, and it's easier if I come in after the fact,'" says Faye. "So that was kind of the underlying premise here."
At its core, the case around Bass was more about prosecutorial discretion than it was about child pornography. The law the government used to prosecute Bass has an immunity statute, which provides that someone acting in accordance with school board policies is protected from civil and criminal prosecution. This would seem a fairly clear-cut example of that.
Prosecutors disagree. "From the beginning and it still troubles me now: We had a school administrator that knowingly kept nude images of a juvenile student on his phone," 13th Judicial District Attorney Travis Sides told The Colorado Sun. "So in other words, he could pull up that image whenever he wanted to, anytime a day or night."
Perhaps it should matter to Sides that forensics concluded Bass never pulled up the images and only took them in the absence of the school police officer doing his job. And perhaps it did matter to the government, despite their public statements. Had Hobbs not thrown out the case in accordance with the law, the government had offered Bass a "deal": Plead guilty to obstructing justice, and the case would go away.
That may sound like a nice bargain. Consider, however, what the implication is: Bass would face up to 12 years in prison and a slew of other life-altering consequences for exercising his Sixth Amendment right to trial after the government made clear with its deal that such a severe punishment was not necessary. That sort of over-charging is common and gives prosecutors leverage to coerce guilty pleas—even from people who aren't guilty.
It's a practice some say is unconstitutional. In Maricopa County, Arizona, for instance, defendants are given a plea deal and told in fine print that they will face significantly more time behind bars if they merely want to review the state's evidence against them or attend a preliminary hearing. One such defendant, Michael Calhoun, was given a nine-year plea deal offer for selling about $20 worth of drugs and told that if he did not accept it outright, he would face a "substantially harsher" fate. He sued in 2021, challenging the legality of that approach.
Bass may relate more with another defendant in Maricopa County, Levonta Barker, who received a plea deal offer for aggravated assault and kidnapping. Barker, too, was told that reviewing the evidence or attending a probable cause hearing would cost him. That's unfortunate for many reasons, most notably because he was innocent—something the Maricopa County Attorney's Office was forced to admit after Barker had already spent a month in jail.
With such a wide separation between plea deals and the punishments meted out after trial, defendants have to decide if exercising their constitutional right to a trial by jury is worth the risk. "The plea they're offering potentially lets me stay as a husband and a dad, and to me those are the biggest priorities in my life," Bass said. "I basically need to choose: Do I want to clear my name and risk losing my entire life, or do I want to not clear my name but not lose my life?"
Bass will no longer have to make that choice. But whether or not he will ever clear his name is debatable. "The accusation carries such a stigma that people are always going to wonder. So no matter what he does, no matter what court rulings we got, I don't think he ever recovers from this," says Faye. "That's always been the thing that really strikes me about the system is just…how much power and discretion the prosecutor has."
