Aaron Swartz and Plea Bargaining

The death of Aaron Swartz earlier this month sparked a significant discussion of the purposes of punishment and of prosecutorial discretion.  Another important aspect of the case is plea bargaining.  As detailed in the Wall Street Journal Article below, Swartz faced a significant sentencing differential in his case and difficult decisions regarding how to proceed in the face of federal charges.

Just days before he hanged himself, Internet activist Aaron Swartz's hopes for a deal with federal prosecutors fell apart.

Two years ago, the advocate for free information online, who was known to have suffered from depression, allegedly used the computer network at the Massachusetts Institute of Technology to download nearly five million articles from a fee-charging database of academic journals. To some in the Internet community, it was a Robin Hood-like stunt.

Prosecutors disagreed and threatened to put him in prison for more than three decades.

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.

Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise.  

The prosecutor, he said, didn't budge...

A few years ago, Mr. Swartz caused a stir by downloading some 20 million pages of court documents from the fee-charging Pacer website by exploiting free access given to libraries. No charges were ever brought, and no crime was committed, his lawyer said. But his efforts to make online content available for free ultimately brought him into conflict with federal prosecutors.

He was arrested in 2011 and charged in a scheme in which he allegedly logged into the computer network at the Massachusetts Institute of Technology and using it to download millions of academic journal articles from a database called JSTOR, owned by a nonprofit group.

According to the indictment, Mr. Swartz bought an Acer laptop in September 2010 and hooked it up the same day to the MIT network, registering as a guest under the name Gary Host and computer name "ghost laptop." Over the next few months, he allegedly used that computer and another to automatically download journal articles, playing cat and mouse with the university and JSTOR as they tried to shut him down.

Mr. Swartz's goal, friends said, wasn't to steal the material for personal gain, but to make it publicly available. On Wednesday, after a 10-month trial program, JSTOR opened its archives to free reading by the public.

"We are deeply saddened to hear the news about Aaron Swartz," JSTOR said on its home page Saturday. The organization said it had told prosecutors that it wasn't interested in pursuing charges against Mr. Swartz.

The trial was set to begin April 1. Mr. Swartz faced charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer. He faced as many as 35 years in prison, in addition to up to $1 million in fines.

In a superseding indictment handed up in September, prosecutors expanded the original charges to include 13 criminal counts that could have carried an even lengthier prison sentence.

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

The case also brings attention once again to the important issue of mental health and its relation to the criminal justice system.  The entire Wall Street Journal article is here.