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Courageous Courtrooms


This is chapter Thirteen of the book RPS/2044: An Oral History of the next American Revolution. RPS/2044 has its own book page, with front matter, reviews, essays, interviews, testimonials and place for user interaction with the interviewees. In its thirteenth chapter 
Robin Kunstler and Peter Cabral, discuss legal upheaval.

Robin Kuntsler, born in 1971, you were a criminal trial lawyer and with many major crime cases for experience, you rebelled at the injustices of the criminal justice system and became active not only in aiding RPS members accosted by the state, but also in developing RPS conceptions and policies bearing on judicial affairs. You also became the first Shadow Supreme Court Justice. Do you remember how you first became radical?

I was practicing law but came to think I was practicing human herding. The legal system resembled a corrupt concoction of victim revenge plus social control through intimidation and fear. I was brokering guilt, innocence, jail terms, and fines. I was bartering, bullying, and manipulating. But even as I did the best I could within it, I got furious at the system instead of succumbing to it. I frequently went home at day’s end sick over having plea bargained innocent lives into prison to avoid their receiving longer sentences from prosecutors padding resumes. I started to educate myself and I grew to want justice brought about by people, not injustice imposed by judges, prosecutors, and police.

I was revolutionized when I decided that a true practitioner of law had to be a committed agent of justice. I visited an imprisoned client who should have been free. It was typical but I left especially depressed, angry, and intent. I was awakened to my profession’s unavoidable reality. Law without justice was regimentation. I rebelled at being regimented and at regimenting others.

Continuing with your personal journey, can you recount a particularly inspiring or moving experience you had during the period of RPS’s emergence?

While the 2024 legal workers conference centrally influenced my later agenda, my interactions as a defense attorney with clients, prosecutors, judges, and police most moved me.

On the client side, I heard about how people’s stultifying lives produced drug addictions and anti sociality and about people’s efforts to survive and help their children survive. For me, the illegal acts were peripheral to the real message: Society is a meat grinder and these people are its meat. Society rolls over these people, burns them, buries them. To carry on, they often follow nasty paths. Wearing their shoes, I felt I would follow those paths too.

On the court side, I heard well-off highly schooled prosecutors, erudite judges, and aggressive police officers display zero empathy for the accused. They prosecuted, judged, and restrained my clients as if eradicating diseases. They won cases, cleared dockets, punished perps, avoided embarrassment, and advanced careers. Justice played no role.

Some legal officials tried to do good but overall my profession abided horrendous outcomes and lacked legitimate values. Despite its high sounding rhetoric, my profession required complete overhaul.

The current advocacy model says lawyers should aid clients regardless of guilt or innocence. Can you explain that?

If we leave people to defend themselves, skills of practitioners unrelated to the facts of some dispute would often determine outcomes. That suggests we need well-trained lawyers and prosecutors who try hard for everyone and are equally available to all disputants, which is the current rhetorical stance though it is often neglected, ignored, or violated by the different abilities and means of professional lawyers, their different fees, and the different resources of clients. At any rate, the defense tries to win regardless of any attitude about the defendant. The prosecution tries to win, but only when it believes in the guilt of the defendant. But since victories spur prosecutors’ careers they work to win by any means they can muster even when they suspect innocence, and, in any event, the idea that this legalistic face-off will yield the greatest probability of truthful results strikes me as about as believable as that everyone in an economy seeking selfish private gain will best achieve sociality. But what’s the alternative? Surely not that if a lawyer dislikes a client, the client gets a poor defense.

We knew judicial dangers were incredibly aggravated by lawyers and prosecutors gaining income and promotions from winning cases, regardless of justice. RPS sought to remove that factor by imposing the norms of equitable remuneration. We also knew that even beyond those involved in jurisprudence receiving incomes correlated only to effort and duration, worthy justice would require further alterations from current practices. However, how to best modify or replace the combination of courts, judges, juries, and aggressive advocacy with different mechanisms is still unclear.

So it is still pretty much an open question for RPS, even twenty years since RPS’s founding and even as it is moving toward victory in society?

I am afraid so. After struggling unsuccessfully to conceive an approach to investigating and adjudicating cases that virtually guarantees truthful outcomes, my guess is there is no one right way. We may need a number of different trial methodologies where which methodology to use depends on the context.

The new technology for knowing when someone is lying is another variable. Lie detection has become so portable, accurate, and inexpensive, it introduces new complexity to all sides of life, not just jurisprudence. We are getting close to a situation where lying is virtually impossible, not only in court, but anywhere, and, as many commentators have been exploring, that is a big deal in many parts of life, both personal and social, including trials.

What judicial innovations has RPS advocated?

After the opening RPS convention, the first area we addressed was not courtroom dynamics, but policing and punishment. Policing was always problematic, particularly in the U.S., and grew steadily more perverse in the decade before the first RPS convention. On the one hand there was a major growth in police violence toward minorities, including legalized murders. As horrific as that was, looming even larger was our astronomically inflated rate of incarceration which, in virtually every case, accomplished nothing more than schooling the arrested person in becoming a more effective criminal once released since he or she typically saw no other avenue back into even modest stability and comfort than more crime.

The initial focus of judicially-related RPS work by movements of inmates, inmate’s families, and members of over-policed communities, was to demand intelligent community control of police, new police training policies, demilitarization of police forces, new judicial remuneration and job roles, plus new punishment policies to emphasize rehabilitation and productive contributions to society, fellow prisoners, and self.

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Peter, I think I forgot to ask earlier, do you remember your radicalization?

A friend of mine was shot and killed in a drive-by. Another friend became a gang member and was on the shooting end in some engagements before he too was shot. I grew up around needles and guns. Gangs were our means to have close allies. A gang had your back. A gang promised financial well being. We took our talents where we could best put them to use.

After my friend died I was uneasy but it didn’t quite break my gang ties. But then I visited relatives and heard stories of their arrests and prosecution, and it began eating at me. I went to court a few times, and it was an incarceration parade. I got arrested, wrongly, though it wouldn’t have mattered either way because it wasn’t anger at the wrongful incarceration that drove me to political awareness. It was the incredible reality that prison was a school for crime that had little or nothing to do with reducing injustice.

Prison was about control and profit. My complaints went from rhetoric that I had previously ignored to reality that I lived. I had to accept and make the best, or reject. I rejected and the rest was running downhill, away from gangs and crime and toward activism.

I had a talent for explaining, hearing, and relating to others. Organizing, public speaking, and activism came naturally. I put my new talents to use where they could do most good, but I knew that but for a few random factors I’d have been a very different person.

You left the gang life but what took you into activism?

People go to their first political event for countless reasons. Maybe they already support it, they are curious, or a friend brings them. I went to a meeting in the prison yard with a friend. I found the people different, but heard talk I liked. It was interesting. I was provoked. I went to another. It took some time undoing old biases. But all told, not too long.

You were very active in early work around prisons. Do you see these matters like Robin?

Yes, but with my own tilt. When I went to prison I was arrested on trumped up charges and my incarceration was overturned after I served six years. So I was obviously familiar, firsthand, with the incarceration of innocents not only on trumped up charges, but also due to bureaucratic pressure, racism, and laws that punish victimless “crimes.”

But the truth was, on entering prison I didn’t have a good idea what to expect. My knowledge came from TV and a few discussions. I quickly realized plenty of inmates were innocent or over sentenced. I fought to survive. I learned how to relate and navigate. I made friends with people I could work with. Next came modest attempts to build our numbers. We shared texts from RPS. We wrote to prisoners in other prisons about our experiences and read about and discussed theirs.

By 2026, we made some serious noise. We didn’t have much idea what it could achieve, but, nonetheless, we called a one day strike. The turnout was enormous. Prison labor is like this: You work at command. You anticipate violent repression. You get subsistence. Your every breath is overseen.

While our one-day strike offered demands only about prison conditions, in the week following, we thought, why not strike for a living wage, too? And why not start to work toward participating in the decisions that affect us? We should improve our current lives, but if we were supposed to eventually leave prison as citizens, we should also develop citizen-like habits. Why not implement self government?

We initiated a more sustained strike that addressed the behavior of guards, rules for visiting, availability of books, internet, and other means of communications. We demanded opportunities to conduct our own classes and challenged the status of our wages, conditions, and rights.

It wasn’t easy talking with hardened inmates whose mindsets were cautious, self centered, hostile, and prone to violence.

Nonetheless, our strike spread quickly from prison to prison and attracted enormous outside support. We were hard to repress. It wasn’t that the guards couldn’t brutalize us into temporary submission. They could, and they did, often. But we didn’t fight back. And that not only won us tremendous support from outside, it also limited the violence. We would back off, seemingly lose, and within days be back on strike. Like Cool Hand Luke, a prison favorite, we got knocked down but then right back up over and over, but we took Luke one better. We weren’t individually courageously escaping our hell only to be repeatedly hauled back. We were collectively replacing our hell.

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Robin, how would you sum up the changes in courts and police?

We took steps we knew to be worthy and leading in the right direction. Of course, the impact of our efforts has been enormous in the huge reduction of inmates and the transformed conditions of those still incarcerated, but how much beyond these changes we still need is unclear.

A major proposal some have been exploring is that perhaps those who have committed truly violent crimes and who are legitimately deemed a danger to society ought to have, ironically, something like their own societies in which to rehabilitate and become socially responsible. It is the penal colony idea of old, but without the deprivations and fierce oversight. Perhaps small islands, instead of massive concrete towns, could host communities that mirror the best social relations we can conceive. Maybe this should become the default home for prisoners until they are ready to return to society. Maybe more stringent and less rehabilitative options should be applied only when essential for other inmates’ safety. Some people are prosecuted and can rehabilitate, other people are incorrigible and will try to exploit any opportunity to take advantage of others. We don’t want incarceration that produces anti social mindsets, but nor do we want incarceration that a subset of inmates violate at the expense of the rest. RPS-nurtured upheavals in prisons, in communities that have many prisoners, and in the legal profession persist right to the present and will likely continue until we settle on fully transformed relations.

I would like to ask a personal question, if you don’t mind. As a criminal trial lawyer, in your younger years, did you ever defend people accused of murder in a state with the death penalty? How did you feel? And did you ever knowingly get people who were guilty entirely off from punishment and rehabilitation? How did you feel about that?

Yes, to both. On the former, I did about 15 murder trials with the death penalty possible and I was loathe to take such cases for the reasons your question anticipates.

I found it difficult to defend someone against vicious incarceration. I found it unbearable to go to court day after day, knowing that if you lose, your client – who in many cases you became friendly and even close with – would be executed. For that reason, while my stance wasn’t admirable, I didn’t do such cases unless I had confidence the client was innocent and we could win. Still, I lost three. Two were later freed when new evidence proved their innocence. One was nearing execution when we won an end to the death penalty. He will still be languishing in jail when we totally reform the prison system and, in my estimation, win his release.

Winning freedom for someone you know is guilty has an opposite emotional drag on the lawyer. Accomplishing that for modest crimes, I always felt nothing but good. The penalties would have achieved nothing and far exceeded anything warranted. I celebrated freeing folks from that. There were, however, other cases where I won a client freedom and he was guilty of a serious crime, in one case murder. This was severely trying for me, as I am sure it was for the families of the victim. And this is why fixing the justice system is no simple matter. I hated this, and yet, I would do it again, so long as we have the system we now endure. The closest we can come to just outcomes with this system entails lawyers always doing their best, even when our best in some sense proves to be too good.

 

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