Robert Morris Sentencing
May 1990

by Lawrence Kestenbaum

On Friday May 4th [1990], 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 period.

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 repentant.

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 reduced.

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 criminal 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.

Essay written in May 1990 by Lawrence Kestenbaum.
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