New Yorkers concerned about public safety are breathing a sigh of relief today, after a Manhattan jury acquitted Daniel Penny of criminally negligent homicide in the May 2023 death of Jordan Neely. Aside from small groups of far-left agitators calling for Penny’s head, many observers seemed skeptical from the get-go of Manhattan district attorney Alvin Bragg’s effort to imprison Penny for physically restraining Neely, who burst into a New York City subway car in the midst of a psychotic episode and began threatening and menacing riders.
The public skepticism was well founded: prosecutors should never have brought this case in the first place.
Neely was a repeat criminal offender. He had racked up some 42 prior arrests, including for assaults on women on the subway. He had a documented history of serious mental illness, worsened by repeated drug use. This isn’t to say, of course, that he deserved to die. It is to say that Neely fit the definition of a ticking time bomb. Instead of being put in jail or compelled to enter an inpatient psychiatric-care facility, he was permitted to roam the streets. This was a choice, which means that the situation in which Penny and his fellow commuters found themselves in May 2023 was the byproduct of the government’s failure—one of many such failures (lest we forget about Ramon Rivera’s alleged stabbing spree just last month).
Forcing commuters to deal with the fallout from unwise policy choices is bad enough. But for the government then to prosecute someone for a good-faith effort to navigate the dangerous situation created by those choices is a step too far for many New Yorkers.
The Penny prosecution is even harder to swallow given the evidence suggesting that perception of Neely as a threat was reasonable; that the decision to restrain him in response was also reasonable; that, whatever one makes of his specific method of restraint, Penny was not trying to kill Neely (he released him as soon as he became aware that Neely had lost consciousness and could no longer fight); and that Penny’s lack of criminal history, military service, and cooperation with authorities undermine any suggestion that the public would benefit from his incarceration.
Adding to the sense of unfairness here is the reasonable belief that Penny’s prosecution was politically motivated—the byproduct of a calculation made in response to the racialized protests following Neely’s death. (It’s worth noting, too, that Bragg rode into the DA’s office on a magic carpet of promises to be more lenient toward the kind of repeat offenders New Yorkers are sick of dealing with.)
Why would Bragg, who so strongly believes in restricting the use of prosecutions to cases with “real” public safety implications, put so much effort into trying to convict a college student and Marine Corps veteran with no criminal history for a death he obviously didn’t mean to cause, which occurred in an attempt to protect his fellow New Yorkers from Neely? Is there a better answer to this question than, because it was the most politically beneficial move for a DA who didn’t want to risk losing his “progressive” base in his reelection bid? The Penny case certainly isn’t Bragg’s first politically motivated prosecution with no obvious public-safety upside.
Making matters worse, the prosecutor who litigated the case against Penny once touted her decision to go easy on a robber who accidentally killed an elderly man by striking him during a holdup at a Manhattan ATM. Rather than pursue a felony murder charge, the prosecutor charged the man with manslaughter—the same offense Penny was charged with. Does anyone believe that Daniel Penny merited comparison with a thief who would slug a man in his eighties for a few bucks? Could Bragg not see the difference? A better question: Should New Yorkers reelect a DA who can’t?
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