In the year 2042, an oral history of the then 25 year-old ongoing Revolutionary Participatory Society organization/project in the U.S. will be published. The book’s fifteen chapters will excerpt and arrange insights culled from eighteen interviews to present events and ideas in a sequential, encompassing way.
By unknown dynamics, the book’s introduction, its 18 source interviews, and even drafts of its chapters, have begun to appear via email in the present. The web site at http://rps2044.org presents more about the project, its aims, and ways to relate to it, and offers more of its substance as well.
In any event, the interviewer is named Miguel Guevara and the interviewee in this article is named Robin Kuntsler. The year they meet is 2041. The interview is a virtually verbatim transcription. Also, as there are 18 interviews and since Guevara will seek to avoid undue overlap, no one interview serves as more than a facet of the larger whole.
Robin Kuntsler, you were born in 1971. A criminal trial lawyer 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. I wonder, do you remember how you first became radical?
I was practicing law, but came to think that I was, instead, practicing human herding. The legal system came to me to resemble a corrupt concoction of victim revenge and social control through intimidation and fear. It was poker played with human chips. We brokered guilt, innocence, jail terms, and fines by barter, bullying, manipulation, and graft. Power and wealth ruled.
For your question, I got furious before I got resigned. I went home at day’s end ill at what I had seen, and sometimes, sadly, at what I had been part of. Imagine repeatedly plea bargaining innocent lives into prison as the only way to avoid their suffering still longer sentences at the hands of prosecutors and judges padding their resumes. I started to educate myself about why my daily experience was so Kafkaesque. I came to want justice brought about by people, not by judges, prosecutors, wardens, or police officers all serving the establishment.
I discovered two streams of thinking that gave me perspective and direction. One was about the law’s implementation and corruption. The second, even more crucial, was about the broader society and its implications for what the law in practice was permitted and required to accomplish.
But still, all of this was just ideas. I was a practitioner only modestly different than I had been earlier. So I would say I was first revolutionized when I decided that to be a worthy practitioner of worthy law required being a committed agent of justice as an even higher calling. It happened one day visiting a client in a prison where he did not belong. I left the meeting depressed, angry, and finally, intent. Like a hurricane leveling all in its path, I was suddenly hit by the unavoidable reality of my profession. Law without justice was regimentation. My journey from there to RPS was natural and swift.
While we are on your personal experience, as I have asked others, can you perhaps recount for us a particularly inspiring or moving experience from the period of RPS rise, for you?
The 2024 legal workers conference was central to my agenda ever after. But there was a more private experience, actually, you might call it a network of such experiences, that I think mattered greatly for who I became. It was my interactions as a defense attorney with clients, and with prosecutors, judges, and police.
On the client side, it was hearing all manner of reports of people’s lives and how they were stultifying and deadly and produced drug addictions and anti sociality but also efforts to survive and especially to help one’s children survive. For me, that illegal acts were very often part of the stories was of only indicative consequence. The real message was that society was a meat grinder and these people were its meat. Society was a pile driver and these people were its pile. Society rolled over them, buried them, burned them. To carry on, they found only nasty paths.
On the other side, all too often you had relatively well off highly schooled prosecutors, including District Attorneys, well off judges including at District or Supreme level, and police, including chiefs. The empathy these folks had for the accused was most often less than zero. The focus these folks had on legality, much less justice, was zero save when it served their aims. Their abiding concern was clearing dockets. They sought convictions to avoid embarrassment and advance their careers.
The system was not even rotten. It was beneath rotten. It was so horrendous in its practice and so empty of values despite its undeniably high sounding rhetoric that whatever the final shape of law would need to be, complete overhaul was required. And so, I was on a path that RPS illuminated.
RPS has recognized that the advocate model in which lawyers work on behalf of clients regardless of guilt or innocence makes considerable sense. Can you perhaps summarize that?
We didn’t want people defending themselves so that those who are good at doing so have a tremendous advantage over those who are not good at doing so. Put differently, we don’t want skills unrelated to the facts of some dispute or criminal trial prevailing.
It follows that we need well-trained lawyers and prosecutors who are available to all disputants equally and who will try hard for everyone. That is roughly the current logic, albeit it is often neglected, ignored, or violated by the different abilities and means of lawyers, the different resources of clients, and in all manner of other aspects of lawyering. At any rate, the defense is supposed to try to win regardless of any attitude about the defendant. The prosecution is supposed to also try to win, but only the cases where it believes in the guilt of the defendant.
Yet, RPS has qualms about this approach?
It makes some sense that in court confrontations defense attorneys should seek to win favorable verdicts regardless of their knowledge of the true guilt or innocence of the accused, and that prosecutors, once they bring a case, should pull out all stops to win regardless of misgivings they have, unless they perceive innocence. But the fact that prosecutors’ reputations depend on victories means they work to win by any means they can muster even when they do have indications of innocence, and, in any event, the idea that this legalistic face off will yield the greatest probability of truthful results strikes most in RPS, myself included, as about as believable, in certain respects, as the injunction that everyone in an economy should seek selfish private gain as the best means of benefiting society and achieving sociality. But in doubting the system we encountered a problem. What is the alternative? It can’t be that if a lawyer doesn’t like a client, the client gets a poor defense.
Of course, the dangers inherent in judicial methodology are incredibly aggravated by role structures where lawyers and prosecutors gain income and promotions from gaining sought verdicts, regardless of justice. This part, RPS of course sought from the outset to remove by imposing the norms of equitable remuneration.
And, indeed, the corruption and perversion of role-induced self seeking was our focus when some lawyers, law clerks, and even a few judges and prosecutors began to question the whole system and many began turning toward RPS for community while doing so. Yet, we knew that even after those involved in jurisprudence become recipients of equitable incomes correlated to effort and duration, the pursuit of worthy justice by trials would also entail considerable alterations from current practices. However, how to best modify or replace the combination of courts, judges, juries, and aggressive advocacy with different mechanisms, is even now 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?
Yes, I am afraid it is. It is quite hard to conceive an approach to investigating and adjudicating cases in ways that virtually guarantee truthful outcomes. My guess is there is no one right way. Rather, it may be necessary to have a number of different trial methodologies where selection of which methodology we use depends on the context and is a first step to decide before proceeding with actual adjudication – though, of course, then how a method is chosen becomes an issue.
I should add that another factor is the new technology for knowing when someone is lying. That lie detection has become so portable and inexpensive, and thus so prevalent, introduces considerable new complexity. We are getting close to a situation where lying is virtually impossible, and, as many commentators have been exploring, that is a big deal in many parts of life, both personal and social, including trials.
What are aspects of judicial innovation that RPS has arrived at supporting, and some of the processes at root of that?
After the opening RPS convention, a minority of lawyers and even some prosecutors, and many trial assistants became very interested in RPS. Before long there were meetings and a conference to discuss possibilities. The first area that came up for serious review was not courtroom dynamics, but policing and punishment.
Policing, always problematic in many ways, particularly in the U.S., had grown steadily more divorced from anything anyone might deem exemplary in the decade before the first RPS convention. On the one hand, and most visibly, there was an incredible growth in police violence toward minorities, even including all too frequent extrajudicial killings – legalized murders. And as horrific as that was, arguably an even larger problem was our astronomically inflated rates of incarceration which in virtually every case accomplished nothing more than schooling the arrested person in becoming a more effective criminal, since there was no other avenue back into society more likely to yield even modest stability and comfort than more crime.
So the initial focus of judicially related RPS work, which was a product of judicially involved RPS members, as well as, even more so, movements of inmates and inmate’s families and over policed communities, was to demand intelligent community control of police, renovation of police training policies, demilitarization of police forces, and renovation of judicially related remuneration and job roles, plus renovation of punishment to emphasize rehabilitation and productive contribution to society, fellow prisoners, and self.
Robin, how would you sum up the changes in courts and police…
Not having a full vision for adjudication and legality in a new society didn’t seriously impede judicially related activism. There was much we knew to be worthy and leading in the right direction, even as RPS first got started.
Of course, the impact of these efforts has been enormous where changes have been won and implemented, not least in a huge reduction of inmates and the transformation of conditions for those still incarcerated, but how much beyond these changes may be needed is still unclear.
A major proposal, for example, that some have been exploring is that aside from eliminating incarceration for victimless crimes and other changes that reduce the duration of isolation from society, perhaps those who have committed violent crimes and are deemed a danger to society and who therefore really do need to be separated from it, ought to have, ironically, something like their own societies in which to rehabilitate and become socially responsible. I suppose 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 for any community. Maybe this should become the default home for prisoners until they are deemed ready to return to society. Maybe more stringent and less rehabilitative options should be applied only when they prove essential for other inmates’ safety. These are not easy issues to deal with precisely because some people are prosecuted and quite plausibly able to rehabilitate, whereas other people are simply incorrigible and will try to exploit any opportunity to take advantage of others. Of course we don’t want incarceration that produces anti social mindsets that aren’t present in the first place, but nor do we want incarceration that a subset of inmates violate at the expense of the rest.
In any case, the upheavals within prisons, in communities that have many prisoners, and in the legal professions that were nurtured by RPS in its early days persist right into the present and will likely continue for a considerable time to come before 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 in such a situation? And, on the flip side, 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 a death penalty possible. I was loath to take such cases for the reasons your question anticipates. It is difficult enough to defend someone against vicious incarceration penalties. It is unbearable to go to a trial, day after day, knowing that if you lose, your client, who in many cases you become quite friendly and even close with, will be executed. For that reason I didn’t do such cases unless I had confidence the client was actually innocent. Still, I lost three. Later two were 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 who you think or even know to be guilty has, as you say, an opposite kind of emotional drag on the lawyer. For myself, accomplishing that for modest crimes, I always felt nothing but good. The penalties would have achieved nothing and in any event far exceeded anything warranted, so 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 doing their best, always, even when our best in some sense proves to be too good.
Robin, in addition to dealing with differences in background of members, there is also, of course, dealing with differences in views members have. One of the contentious issues in RPS has been the question of leadership. As RPS’s first Shadow Supreme Court Justice, you likely have views on this. Why was it contentious?
Typically, one or a few people go first. They lead. Others see their example, hear it, assess it, and if they follow suit there has been an act of leadership. No one in their right mind thinks that is a bad thing.
Rosa Parks not going to the back of the bus is not a bad thing. Bernie Sanders initiating a campaign for President is not a bad thing. Your neighbor being first in the community to call a meeting about a nasty, dangerous intersection needing a new stoplight is not a bad thing.
Indeed, everyone agrees that that aspect of leadership is a good and inevitable fact of life. We are not a hive species that has one mind which always operates in unison. It is good when someone provides exemplary behavior or ideas which resonate with others.
What is bad is when someone who goes first and provides leadership accrues excessive power and wealth and becomes personally perversely distorted. We all know instances.
Take the second problem first. You provide leadership. How do you view your own act? Let’s say you often have ideas or undertake steps that others later emulate. Do you consider yourself superior, more deserving, and more important? Do you tend to look down on folks? Do you ignore other peoples’ views? Do you contemplate that only your views matter? This is ego inflation. It distorts personality and choices. It is a slippery slope to elitism. It underlies the oft repeated but rarely understood claim that power corrupts and absolute power corrupts absolutely.
What about wealth and power? That leadership garners praise and respect is appropriate. However, if the praise and respect gets parlayed into control over positions of influence, and then the increased influence yields power and wealth, that is harmful. Arriving at a worthy idea or practice before others shouldn’t convey increased income or greater say in outcomes. Even worse, it should not create conditions for a repeat performance and another, and another, leading to entrenched power and wealth.
Those are the potential problems of leadership. Sometimes people would discuss them in a vague way that would confuse the issues but, before long, everyone in RPS agreed what was at stake. The contentious part was how we would deal with it.
Okay, what were the contending views for how to deal, and what emerged as the best solution to avoid the potential pitfalls of leadership?
We debated how to benefit from some people arriving at good choices and other people supporting them without incurring costs in the personalities of those leading, or, even worse, in the whole social structure due to entrenching leadership which would then become preoccupied with protecting its position and alienated from the rest of the population.
The RPS solution on the personal side, in the minds of the people who sometimes lead, was to try to change the self perception that goes with leadership.
In everyone’s mind the definition of providing leadership had to become to step out first in ideas or behavior, but to do so in ways that welcome others to do the same. The best leader causes others to lead too. Positive leadership precedes others but then elevates them. Positive leadership recognizes, reiterates, and never forgets that to lead means to provide without taking, to give without receiving.
We wanted self management. We wanted social roles that did not aggrandize anyone on the basis of his or her having had good ideas or having done something admirable. But to get both, we had to escape a viscous circle. Old consciousness plus recurrent leadership from a few people inexorably propelled divisive hierarchy. Until new institutions were firmly in place, exerting leadership tended to reinstall past relations. But attaining new institutions required acts of leadership.
One answer was to curtail leadership recurring. In other words, if someone has some combination of attributes that causes that person to repeatedly arrive at good ideas or good choices earlier than others, to avoid the leader’s inexorable elevation we could note the tendency and temporarily isolate that person from being able to continually exert leadership. We would lose some good contributions from the person, but we would prevent the person’s trajectory from interfering with still more important gains.
The second answer was to say no, we should get all the benefits such a person can provide, we just have to be really diligent about preventing the person from becoming elitist and, even more so, about preventing his or her turning popular respect into entrenched influence.
Where did you come down in this dispute?
I hope you won’t feel it is dodging the question, but I thought both sides were right and so a judicious mix was needed. My criteria for a good mix was that we should not let one person’s creativity, innovation, courage, or whatever it might be, crowd out the possibility of others rising in their creativity, innovation, courage, or whatever it might be. This was, in some sense, just applying the earlier idea about the personal solution more explicitly and carefully.
I once worked with a group of twenty people. Three were very creative, thoughtful, courageous, or whatever, compared to the rest. They continually jumped ahead to optimal solutions for each issue that arose. Everyone else was crowded out from contributing that kind of leadership by the three peoples’ speed. Each time the three people excelled, they became more confident and more practiced at it. Others became acclimated to hearing answers and not providing them. Entrenchment occurred. Even with balanced job complexes, equitable remuneration, and self management, this was a trajectory that let some folks get a jump in the leadership process, where the jump afforded them a higher likelihood of leading next time too, and next time, and so on.
As we began to understand that dynamic and we also understood that even at the risk of arriving at good ideas or actions later than we might otherwise have done, we would have to reign in folks who were recurrently leading so that others might fill the space. Of course those early leaders, if they had adopted the mindset that true leadership firstly elevates others, would not mind and would even welcome the restraint – but even if they did not, even if they endlessly argued that they were being stifled, or that the whole group was losing out on their genius, still the steps would sometimes need to be taken.
I should say, this is of course quite delicate. It can be done in a ham-handed way that really does stifle creativity and initiative or it can be done well and increase both overall creativity and initiative and at the same time approach classlessness, which is the goal. The thing is, as with most things social, when you get into a specific situation there will be differences of opinion and no easy way to arrive at resolution. But we did notice one thing relevant to how to proceed.
Take that twenty person group, again. Suppose two are leading, Let’s say it is Joe and Jill, repeatedly. We take notice. We suggest that they hang back, be quiet, wait on others to arrive at the leading insight or a better one. An argument ensues. Joe and Jill protest that they would be hampered, restrained, even oppressed, by this choice. Our leadership is for the good, they say. Don’t stifle it.
This happened often and similarities appeared. First, it was for those other than Joe and Jill to assess the value of Joe and Jill’s contributions, not for Joe and Jill to do so. Perhaps they weren’t as excellent as they thought. Second, Joe and Jill were not being hampered, restrained, or even repressed. They were being told, hold on, use your every last bit of insight, creativity, and courage, but use it to mentor, train, spur on, and otherwise add to the likelihood that others will not just arrive where you would have proposed, but even arrive at better places than that. Lead by creating more leadership. This was a good way to pursue diversified leadership, to prevent entrenching leaders, and to avoid resentments. Once people became good at this, most of the tensions and dangers associated with diversifying leadership dissipated.
Did you follow the pattern when you were chosen to be Supreme Court Judge in the Shadow Government?
My post, mimicking the actual U.S. Government, was at first stated to be a lifetime appointment – which is of course totally contrary to everything I have been saying. I did feel the allure of it. I cannot deny that. I would reply when asked about it, that of course there will be no such post in a real, new, participatory government, and if you take a look at my writings and speeches about the judicial system, I hope you will agree that the overall values regarding leadership have been forefront. But I think my stance may have in time evaporated in lordly rationalizations except that we shortly redefined how our Shadow Government operated, with us employing limited terms and recall, as well as balanced job complexes for everyone, including Supreme Court judges.
Prison Organizing and the New Justice
Robin, What emerged in the legal system, from the plant the seeds mentality and agenda?
It was very similar to other realms, though with its own slant, of course. The main focus had to be revising our approach to prosecution but as with other situations, this could occur by changing the court system or by creating alternatives parallel to the current courts.
For the former, part of it was changing laws and punishments. Another part was renovating the approach to prosecution and adjudication. In this area of RPS activity, however, things are still pretty germinal. After winning changes in penalties, particularly for victimless and non violent crimes, and thereby hugely altering the life of the court and dramatically reducing the incredible price to individuals and to society of incarcerations, things were significantly improved. But then came need for a deeper renovation of the whole process to bring it into line with civilized values – including stronger guarantees for the accused made real by collectivizing criminal law procedure and having the state pay the now far more sensible bills on all sides. The main change in mentality was to shift from a tone of retribution against violators and narrow material and organizational self advancement on the part of practitioners, to rehabilitation in sentencing and incarceration – and equitable remuneration for practitioners so they could reclaim sensible motivations.
Much was underway before RPS surfaced, but the breadth of RPS membership and its cross discipline focus added greatly by enlarging the battle lines from families trying to help the accused and inmates, to mass movements of prisoners and families, and then to student movements among prospective practitioners in criminal justice programs and law schools, plus solidarity from other movements, all fighting for global changes in the system.
What about the prisons and jails?
The problems were well known. More people in prison than in colleges was an incredible blot on society. Half to two thirds of those in U.S. prisons would not be in prison in Europe, even if they were guilty of what they were arrested for. Horrible poverty and subordination alongside cultural exhortations to become rich led to perpetual depression followed by desperate acts. Stupendous hypocrisy and rip off on all sides regularized the mindset of “me first and screw you.” Markets rewarded and regimented that sentiment.
Incredible abuse and over crowding inside prisons made them schools for future crime. Being a more effective criminal was something you could learn in prison, and future crime was many inmates only available avenue toward better than bare survival after release. The horrors of it all, like you would find with serious examination in almost all sides of modern life, went on and on.
Inmates were virtual slaves. They worked for the state for nearly nothing. They had every moment of their days supervised by authorities free to punish them however they wished and whenever they wanted. Courts were assembly lines that produced prisoners who filled cells to keep the whole complex churning.
I think the biggest turning point was when prisoner activism inspired prison guards, who were typically notoriously hardened and made callous by their own less than ideal conditions, to nonetheless mount solidarity strikes supporting prisoner actions against overcrowding and slave labor. Of course many guards were made so brutal and dismissive by their experiences they defended the grossly confrontational prison system, but others somehow retained or rediscovered their humanity and that, plus knowing first hand the horror that was incarceration, caused them to begin to dissent. They began to reject their own circumstances and also the circumstances of prisoners. This was not unlike when police more broadly began to have misgivings about repressing rallies, marches, strikes, and demonstrations, not least due to realizing that the protestors demands, more often than not, were not only sensible and desirable, but also for gains the police also needed. Sympathy from those the state paid to keep order for those rising up against that order was a sure sign fundamental change was coming.
Would there be crime in the society you seek? Would there be police and courts?
Back before RPS many on the left tended to answer that there would be no crime, no police, no courts. When you listened to them it was as if for them this had to be true because they thought that otherwise their whole orientation was at risk. It was like some kind of blessed belief. Others of us were always confused by that. Why did astute people feel that to admit there would still be crime, there would still be need for police work, there would still be need to adjudicate disputes, albeit all reduced by huge amounts, would be a slippery slope toward admitting that there is no alternative to class, race, and gender division and injustice?
It is true that you have to believe people are capable of good will, solidarity, and self management to believe in the RPS vision for society. But it isn’t necessary to believe that humans and complex circumstances would never generate anti social actions or sentiments. Not only is it not necessary, it is pretty much absurd.
We know from all history that people can do vile things – people have, after all, done a whole hell of a lot of vile things. Now of course when you switch from institutions that make behaving in vile ways the best and sometimes even the only route to well being or even survival, to institutions that make gains from vile behavior nearly impossible to accrue, you get much less vile behavior. You might even say that all you get that is vile in the new situation is overt pathology or drunken violence, or jealous violence, and so on. But, even if that proves true, that is not nothing.
We don’t fully know, even with all the considerable experiments we already have, what the dawn and maturation of a just and peaceful society will mean for many aspects of human relations. But I don’t see any reason to think that literally all crime will disappear, that there will never be tense standoffs, criminal violence, or anger at unfair behavior. I see no reason to think we won’t need people trained to handle difficult conflictual situations, to discover the perpetrators of crimes, and to adjudicate disputes.
I believe there will be massively less crime for many reasons. People won’t do it out of desperation for livable conditions. Nor will people be able to criminally amass great wealth since having such wealth would evidence having stolen it since in a good society there would no legal avenue to amassing great wealth. But that doesn’t mean there will be no crime and no dangerous situations. And just as with flying an airplane, say, or doing a kidney transplant, there is no reason to say that everyone should be ready to deal with it.
The argument before RPS said police have means to exploit their situation at the expense of others so we need to not have police. Well, pilots could exploit their situation, so could doctors, so could a whole host of different folks. The issue isn’t some abstract possibility of wrong-doing, but whether a pursuit – doctoring, policing, piloting, or whatever – is organized in such a way as to propel its practitioners into paranoid, hyper aggressive, anti social viewpoints and give them, as well, incentive to exploit their circumstances. Getting rid of ill conceptions, eliminating exploitable circumstances, eliminating inessential functions are sensible steps. Eliminating “policing” is not sensible.