Robert Morris Sentencing
by Lawrence Kestenbaum
On Friday May 4th , I went up to the federal courthouse in Syracuse
to witness the sentencing of my fellow Cornell graduate student, Robert T.
Morris, Jr. [for creating the "Internet Worm"]. I'm not acquainted with
Morris, but I've followed the case closely through the media, Usenet, etc.
It seems that every U.S. courthouse has the same airport-style security
system: the walk-through metal detectors, the package conveyor belt. My
friend and I passed through this and were just about to step on the
elevator when we hear the guards laugh, saying "Here comes Robert!", and
around the corner of the building comes a grim-faced, hands-in-pockets
Morris Junior, surrounded by a cloud of dozens of microphone and camera
wielding reporters. "Pack journalism," sniffs my friend; the grinning
guards let our elevator go, and we reach the third floor ahead of the mob.
Apparently Judge Munson's sentencings were handled routinely every Friday
at 2:00 PM. This particular Friday, only two are scheduled; besides
Morris, there's a contractor who underpaid his employees on a Federal
construction project (sitting in the pew behind me, the contractor's
lawyer says to his client: "Don't worry, these people aren't all here for
you."). Ironically, the contractor's basic sentence (three years
probation) is the same as what is later pronounced on Morris; the
contractor, however, is required to make restitution to the aggrieved
employees, and is prohibited from bidding on federal contracts for some
With the contractor out of the way, the main show begins. First, the
defense attorneys (Guidoboni and O'Brien), always referring to their
client as "Robert," make lengthy statements. He's a "decent kid," they
urge, who has taken responsibility for his actions and is properly
Guidoboni, in particular, spends a good deal of time arguing about the
sentencing guidelines. Though I am not familiar with the Federal
sentencing guidelines, I have worked with Michigan's version, and they
basic concepts are the same. Fundamentally, the idea is to limit what
used to be unfettered judicial discretion over sentencing, under which
people committing similar crimes -- indeed, two partners in the same crime
-- would routinely get radically different sentences, depending on which
judge was presiding and how he felt that day.
Given the stories they wrote, most of the reporters were completely
befuddled by the argument over the guidelines. Suffice it to say that the
new Computer Fraud and Abuse statute had been classified (presumably by
court rule) as a "six," a "fraud and deceit" crime. The pre-sentence
report applied this guideline, adding extra points for "special skills,"
and came up with a sentence of just under two years (I don't recall the
specific numbers offhand -- I think it was 21 months). Guidoboni argued
that fraud and deceit (and motivating greed) were not part of "Robert's"
crime; at most, it should be classified under "destruction of property,"
which was a "four" and carried correspondingly lower sentences.
Judges are allowed to depart from the guidelines, but they are required to
make clear why the guidelines were inadequate to determine the sentence in
the particular case. When I was practicing law in Michigan, one judge's
failure to make such a statement enabled me to get a client's sentence
The prosecution surprised me by saying very little. Essentially, he said
he understood that the judge might want to depart from the guidelines in
this case, but hoped that he would sentence Morris to some jail time.
Then he sat down. If all the editorial-writers who have been yelling for
Morris' blood had seen it, they would have been appalled: this was the
opportunity for a fire-and-brimstone speech about national security and
billions in damages. Suddenly, it became clear that "severe punishment"
was not in the cards.
The judge called a five-minute recess and disappeared into his chambers to
craft his answer. When he returned, he asked if the defendant had
anything to say; Morris said "no" (the only word he spoke during the
entire proceeding). The judge then announced that NONE of the sentencing
guidelines applied to this case, and none were even analogous. Hence, he
was free to use his discretion, and he did: three years probation, $10,000
fine, 400 hours community service, no restitution required.
The hearing over, Guidoboni turned to the assembled media, with an air of
contempt and condescension, and said "I'll make it easy for you: Robert
has nothing to say, and he's not going to change his mind." He announced
that he would make a statement and take questions when he got outside.
The press assembled on the plaza outdoors, waiting for Guidoboni to make
his appearance. Most of what he said has been quoted elsewhere.
Afterwards, we ransomed the car (three bucks for 2 hours parking) and
drove back to Ithaca.
What was really striking about all this was the contrast between the
fairly widespread view (among editorial writers and lay people,
especially) that Morris deserved severe punishment and a long prison term,
and the reality I saw in the courtroom. Even my fiancee had argued that
Morris "is guilty and should go to jail."
I think that people who are unfamiliar with the legal system don't tend to
consider how good Morris looks compared to the more typical
defendant who has a history of (a) prior crimes, (b) drug use, (c)
violence, (d) greed, and (e) predatory behavior. Retribution is not
usually foremost on a sentencing judge's mind; rather, he or she tries to
look toward the impact of the sentence on the defendant's future behavior.
It is hard to imagine Morris doing anything like the Internet worm again,
so the need to lock him up is anything but pressing.