But Kerr acknowledged in an interview that the proposed penalties might be a different story. “There was reason to bring criminal charges, but it’s hard to know if the prosecution abused its discretion in terms of a plea offer,” he said.
Leaders of JSTOR had not pushed for Swartz’s federal prosecution, and said in a statement they “regretted being drawn into [the case] from the outset,” given that their “mission is to foster widespread access to the world’s body of scholarly knowledge.”
At the heart of Swartz’s refusal to strike a deal with the government, his lawyer said, was prosecutors’ insistence on felony charges.
Prosecutors offered him two options that “never really changed” during the two years the case went on, said Peters: Swartz could plead guilty to all 13 felony charges and the government would argue for a six-month prison term while Swartz’s lawyers argued for less time; or Swartz could plead guilty to all 13 felonies and accept a sentence of four months. A fine was never specifically discussed as part of the plea agreement.
“I said, how about a misdemeanor and probation, and they said, it will never happen,” Peters said Monday. “They said they would never resolve the case without the opportunity to seek a prison sentence.”
Swartz’s response was consistent, Peters said: “He was like, forget it — I’m not going to agree to go to prison and I don’t think I’m a felon.”
But Swartz was scared, his lawyer said, “and I was scared for him, because although I thought we could win — I really did — there’s always a risk, and I wanted to avoid exposing him to that risk.”
The government last offered the plea deal on Wednesday, said Peters, when the lawyer spoke with prosecutors in preparation for a pretrial hearing. Again, the lawyer said, he appealed to them to “resolve the case in a way that doesn’t destroy his life.” But the offer did not change, and the lawyer did not relay it to Swartz. Two days later, Swartz was dead, found by his girlfriend in their Brooklyn apartment.
His case has become “a lightning rod for people who recognize there are serious problems in the way we prosecute computer crimes,” said Hofmann, of the Electronic Frontier Foundation. “It strikes people, that he was a brilliant, constructive person who made the Internet better. . . . He’s no longer around to make those contributions, and the world will be worse for it.”
Jenna Russell can be reached at email@example.com.