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Both sides in the sad Aaron Swartz case dug into their positions early, and then let the sunk cost fallacy guide their later decisions about how to negotiate wi

Both sides in the sad Aaron Swartz case dug into their positions early, and then let the sunk cost fallacy guide their later decisions about how to negotiate with the other side. Swartz had plenty of friends who would have advised him how to gain publicity for the issue of access to old journal articles without taking the risk of imprisonment, but he didn't seek their advice. The Boston area federal prosecutors treated imprisonment, however brief, as the only outcome of the case that would signal the correct gravity of the offense, but miscalculated that Swartz could not be deterred by other dispositions of the case. Everyone involved (other than on-lookers like Larry Lessig) paid too little attention to the other side's perspective on the case and its trade-offs. EDIT TO REPLY TO QUESTION IN REPLY COMMENT: Yes, nothing that was proposed as to sentencing Swartz during negotiations before trial would have prevented his gaining full restoration of civil rights later, and even being able to expunge his record of conviction, if he had been convicted. His lawyers calculated (correctly, it appears to be the opinion of most but not all on-lookers) that the actual facts of what he did could constitute an offense for which he could have been convicted. So the facts, once Swartz made the facts by what he did, were not fully on his side. But what view a jury or a trial judge or a later appellate judge might have taken of the overall circumstances of the case wasn't put to trial before Swartz killed himself. Impulsive, all-or-nothing thinking is dangerous when life-or-death issues are in consideration.

derekp7 14y ago
Was just wondering... I've heard of some cases where a felony conviction can be expunged after a few years (seven I think) -- wasn't that the case with Randal Schwartz? Would that option have been available to Aaron? Because from what I've read, the thing bothering him the most wasn't the jail time (the smaller sentence offered in the plea bargain), but being labeled a felon for the rest of his life. Would he have been as distraught if the expungement option was available?
- mpyne 14y ago
  There's all sorts of different scenarios, including expungment (which is indeed what Randal accomplished): * Expungment: The records are sealed. It's (mostly) as if the conviction never occurred, since there's no way for people to access the proof that a conviction was returned. But this is a legal construct that only applies in the legal world, they can't go back and erase the newspapers. * Pardon: You did it, but we just won't punish you for it. But the only one we can ask would be Aaron, unfortunately. For what it's worth what "felon" means is entirely up to the state you live in, the people you talk to, etc. I worked with a "felon" (and I'm using this term very loosely here) who had a clearance higher than mine, actually did the kind of jobs where they can't talk at all about it, was able to vote, use banks, etc. No one thought of him as anything less than a valued shipmate, but of course that's just my personal perspective.

derekp7 14y ago

Was just wondering... I've heard of some cases where a felony conviction can be expunged after a few years (seven I think) -- wasn't that the case with Randal Schwartz? Would that option have been available to Aaron? Because from what I've read, the thing bothering him the most wasn't the jail time (the smaller sentence offered in the plea bargain), but being labeled a felon for the rest of his life. Would he have been as distraught if the expungement option was available?

mpyne 14y ago
There's all sorts of different scenarios, including expungment (which is indeed what Randal accomplished): * Expungment: The records are sealed. It's (mostly) as if the conviction never occurred, since there's no way for people to access the proof that a conviction was returned. But this is a legal construct that only applies in the legal world, they can't go back and erase the newspapers. * Pardon: You did it, but we just won't punish you for it. But the only one we can ask would be Aaron, unfortunately. For what it's worth what "felon" means is entirely up to the state you live in, the people you talk to, etc. I worked with a "felon" (and I'm using this term very loosely here) who had a clearance higher than mine, actually did the kind of jobs where they can't talk at all about it, was able to vote, use banks, etc. No one thought of him as anything less than a valued shipmate, but of course that's just my personal perspective.