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Restorative Justice and Moral Neoliberalism


Amy Cohen is John C. Elam/Vorys Sater Professor of Law at Ohio State University Moritz College of Law.

Today, groups of left organizers who wish to abolish the current penal system are practicing community mediation. They facilitate dialogic processes where people who have caused harm engage in active listening, relationship-building, and intensive forms of emotional, spiritual, and material reparations. These processes, variously called restorative justice or more often transformative justice and community-based accountability, are both practical and radical. Practical because while organizers wage political battles against the penal state for racial and economic justice, they simultaneously create spaces for people to opt out—to manage conflict and violence by cultivating love and forgiveness as well as armistice, separation, and safety through relationships and forms of reparations meaningful to them. Radical because these mediations prefigure an alternative just society, one in which individual and systemic change are co-constitutive processes.

As I outline in a forthcoming article, these organizers recall a small group of community mediation advocates in the 1970s and 1980s who linked delegalization and decentralization to left visionary politics. As I also outline, however, informal, anti-authoritarian practices of dispute resolution have often attracted bedfellows across a political spectrum. Likewise today, restorative justice enjoys growing support among Republican policymakers, evangelical conservative Christians, and libertarian thinktanks and organizations. Restorative justice is thus intriguing not only for how left organizers use it to advance prison abolition but also for how libertarian and conservative reformers have fashioned it into a tool of American neoliberalism. 

Like many universities, Ohio State University, where I teach, recently accepted a multi-million-dollar grant from the Charles Koch Foundation—a nonprofit within the Koch network committed to advancing economic liberty and opposed to redistributive public social policies. To illustrate some of the radicalism of this mission, consider, as Brian Doherty has written, that Charles Koch once criticized Milton Friedman and Alan Greenspan for “merely trying to make government work more efficiently when the true libertarian should be tearing it out at the root.” Today, the Foundation advances penal reform as part of this deregulatory vision. For example, it funds Prison Fellowship, a large evangelical prison ministry with a robust restorative justice curriculum where offenders and victims practice accountability and forgiveness (a model meant, yes, to temper, not replace, the existing carceral system).

I spent a morning talking with Foundation staff about their interest in penal reform. Left criminal justice scholars often describe right-wing penal reformers as reproducing economic rationalities: of assuming that cost-benefit analysis, public choice theory, and managerial and actuarial logics are complete solutions to social problems. Marie Gottschalk, for instance, argues that mainstream penal reform is “infused with the core tenets of neoliberalism,” which means “the only penal reforms worth pursuing are ones that save money and reduce recidivism.” Hadar Aviram likewise describes a “neoliberal framework” for penal reform that is dominated by “fiscal prudence rather than humanitarian concern.” I think these arguments are both significant and incomplete. As the director of criminal justice programs at the Charles Koch Institute told me, “arguments about cost savings and fiscal prudence can start a conversation, but they don’t bring people over the finish line. Moral arguments matter.” To persuade citizens that they are better off with “less state,” neoliberal reformers must also aim to cultivate within Americans particular moral beliefs such as grace and mutual aid. Restorative justice is thus an attractive social practice: offenders, victims, families, community members, mediators, prosecutors, and social workers are all supposed to restore interpersonal relationships and—through caring for these relationships—produce forms of social cohesion necessary to scale back both the penal and the social state.

Anthropologist Andrea Muehlebach calls this moral neoliberalism.  Based on work examining the rise of voluntarism in the social services sector in Italy, she observes how governance programs use values like compassion and mutual aid to devolve state responsibility onto individuals, families and communities. These are governance programs that aim to limit state welfare and public social provisioning but whose appeal and institutional power come not from the fact that economic rationalities constantly instrumentalize moral ones — that is, not from transforming altruism and care into rational self-interested utility calculations (as other scholars broadly characterize neoliberal logics). To the contrary, these programs knit together what we might think of as opposites—self-interest and compassion, instrumentality and solidarity, homo œconomicus and homo relationalis. They tether homo œconomicus to a web of moral-relational ideals. And they suggest that how deregulatory and fiscally conservative governance projects play out may depend crucially on the distribution of empathy and altruism, not simply market rationality.

Hence we have a partnership between the Charles Koch Foundation and Prison Fellowship. Actors bent on advancing “economic freedom” and “less state” are underwritten by robust other-oriented forms of Christian morality. Altruism matters greatly, as Prison Fellowship Vice President Heather Rice-Minus told me, because it grounds the Christian case for small government: “As Christians, rather than spend more money through taxes so that the state can act as an institutional service provider, we wish to give in ways that build relationships.” Or as Prison Fellowship luminaries Chuck Colson and Daniel Van Ness likewise submit, “No governmental system can . . . change the human heart,” rather people can through intensive intimate connections.

Of course, the Koch Foundation, a savvy and powerful organization, may deploy whatever strategies and alliances it calculates will advance its larger political mission. But to leave the point here stands to miss a deeper understanding of some of the lived experiences of American neoliberalism: namely, how actually replacing state intervention with community self-regulation means cultivating a private sphere saturated with moral-relational values—not simply instrumental atomized individualism. Another Koch staff member described how in a restorative mediation a victim offered to help his own young offender find employment. His colleagues agreed that this victim-initiated overture was an exemplary restorative aspiration. Here, then, reformers committed to radical forms of “market freedom” commend restorative justice for how it nurtures altruistic, loving citizens.

On this blog, Kate Redburn recently encouraged readers to tease apart different strands of American neoliberalism, including those strands that speak in a moral register. Doing so matters not only, as they argue, to describe neoliberalism’s contradictions and unevenness, but also because as an analytic, moral neoliberalism anticipates that left restorativists will find themselves in spaces where they are not the only ones advancing moral-relational commitments. All sides may advocate genuinely for empathy and care as a principle to order the relationships among people affected by crime, at the same time as all sides may disagree about what empathy and care require from just political, penal, and economic systems. Critical scholars risk eliding these convergences and divides when we presuppose only rational, atomized, individualized, “economic” understandings of neoliberalism.