Daniel Penny, the man who choked another man to death on the F train on May 1, was finally arrested and charged with a crime late last week. Manhattan District Attorney Alvin Bragg charged Penny with manslaughter in the second degree for killing Jordan Neely. In New York, second-degree manslaughter occurs when a person “recklessly causes the death of another person.”
Different states use different words and phrases to describe the various levels of criminal homicide. In New York State, the criminal code is fairly straightforward. The charge of “murder,” be it in the first or second degree, requires the killer to have engaged in a degree of premeditation: The criminal intended to kill the victim. The charge of first-degree manslaughter also requires a degree of intentionality, but to harm, not necessarily to kill; that is, the criminal intended to hurt the victim, badly, but did not necessarily mean to cause their death. Second-degree manslaughter only requires the intent to do an inherently dangerous or reckless thing.
To explain the difference, I like to think of various ways I could be killed by my version of a stereotypical, gun-toting Texan. If the Texan says, “Yee-haw, I shot that loud man in the face,” and I die, that’s murder. If the Texan says, “I shot that loud man’s tires out when he tried to drive away, git ’er done,” and I die from the car crash, that’s first-degree manslaughter. If the Texan says, “I fired two warning shots into the sky to shut that man up, ’cause I don’t know nothing about civilized debate, or gravity,” and the bullets land on me and I die, that’s second-degree manslaughter.
There has been a lot of debate about the DA’s charge, because we live in a world where some people see a video of a white man choking a Black man to death and argue that no crime has been committed. Others, including Neely’s own family, believe the charge is too lenient. That’s not surprising: If you saw your family member get murdered (in the colloquial sense) on the subway, you’d also want the word “murder” to be included in the legal charges against the killer. Attorneys for Neely’s family say they asked the DA to consider a charge of murder in the second degree.
The problem is that, based on what we know publicly, there’s just not enough evidence to support a murder charge. It’s very difficult to prove premeditation in this case: It doesn’t appear that Penny was “lying in wait” for Neely or some other unfortunate homeless person to come along. Some might infer an “intent to kill” from Penny’s use of a deadly choke hold, or the length of time he used it, but proving this intent is difficult, especially when Penny, a trained Marine, will argue that he did not mean to kill Neely. Other passengers on the train will also likely testify that they didn’t think Penny was killing Neely.
I personally think the right crime is first-degree manslaughter but the right charge is second-degree manslaughter, and the distinction there is between what I think happened and what I think the DA could prove to a jury. Man-1 has the same problem as a murder charge: Prosecutors would have to prove intent. I know that a choke hold is an inherently dangerous maneuver intended to cause grievous harm to its victims, but do I trust a jury of 12 random New Yorkers to see it that way? We live in a culture suffused with Wrestlemania-style popular media that shows people who are “choked to sleep” getting back up after the commercial break, as if nothing has happened. Choking is what you do when you don’t want to kill somebody, according to action movies. I have to assume that a jury of my peers is as ignorant about the frailty of the human windpipe as Rambo.
Comparatively speaking, second-degree manslaughter should be easy to prove. Was Jordan Neely killed? Yes. Was his death caused by Daniel Penny? Yes. Were Penny’s actions reckless? Yes, it is inherently, obviously reckless to choke someone. This is pretty much what second-degree manslaughter is designed for: Maybe you didn’t mean to kill that person, but you did something that could have killed him, and he died, so now you go to jail. That’s how things should work in a civil society.
Unfortunately, it will not be as easy as all that, because we do not live in a civil society. Instead, we live in a society with people like David French, who frames uncivilized vigilante killings as some kind of expected social reaction to subway crime. I wish I were making this up. But in a convoluted opinion piece in The New York Times, French managed to cast some form of blame for Neely’s killing on everybody—including Neely himself, New York City social services, the criminal justice system that didn’t punish Neely enough, and the breakdown of social order—except perhaps Penny, whose actions French suggests may be justified as a defense of others. French’s closing flourish is pure incoherent nonsense: “The best way to resolve these problems isn’t through jury trials of those, like Penny, who take it upon themselves to intervene (as necessary as those trials may be) but rather through the preservation of public order by the just application of the law and the generous provision of public support.”
Excuse me? The “best” way to solve social problems is not through jury trials of people who take it upon themselves to kill people on the subway, but rather through applications of laws? I have an idea, how about we start with the just application of laws that prohibit killing people on the subway? It seems to me that, if we want to preserve public order, a key feature of that order would be prosecuting people who kill other people on mass transit.
The astute reader will note that French begrudgingly agrees that a trial of Penny is probably necessary, but consider the likely reason he says this: because French knows that the alternative to a jury trial is somebody visiting the kind of vigilante justice on Penny that Penny forced on Neely. Funny how that works.
French does what so many of Penny’s defenders have been doing for the past two weeks. He brings up Neely’s criminal past (a past none of the other riders, including Penny, knew about before he was killed). He mentions other anecdotes of people who have been assaulted on the subway in the past, as if homicide can be justified because of things that happened to other people. He even includes himself as a victim—not of an actual crime but of a violation nearly as severe to bourgeois elites: He’s been made to feel uncomfortable on the subway, you see. He writes: “I’m a former resident of New York City and a frequent visitor. I can easily think of tense moments when I had to ask myself whether it would be more or less dangerous for me and others if I stayed in my seat.” I guess I can also call myself a frequent tension observer on the New York City subway, but I do not recall ever asking myself, “I wonder if I should kill this homeless man making me super uncomfortable right now? He hasn’t done anything yet, but he’s poor, and you know how they get when they’re all hungry and stuff.”
All of these retributive ideations are done for the sake of painting Penny as a man who was simply trying to protect other passengers from a potentially violent individual. Not an actually violent individual—Neely wasn’t violent when he was killed; only the people in French’s anecdotes and imaginations were actually violent.
But here’s the thing: Penny is not a Precog. He is not allowed to violently act on his supposed clairvoyance.
We know that Penny committed a crime because we know that there were nonviolent ways to handle the situation that Penny, and others on the subway, didn’t appear to even try. The easiest way to diffuse the situation on the train that day would likely have been to offer Neely a sandwich. Or a bottle of water. Or five bucks. That’s still the most shocking thing about this whole situation. The “hostile” and “aggressive” things that Neely said on the train were, “I don’t have food. I don’t have drink. I’m fed up.” And in response, nobody thought to give him food or water or money. None of Penny’s defenders can explain why choking a man to death is defending other passengers on the subway, but giving a desperate man some indication of compassion and charity is not.
What’s lost on French and others defending Penny is that Neely was a passenger on that subway too. He was the passenger who was violently assaulted. But no one helped him. No vigilante Batman appeared to say “In addition to being a secret ninja, I’m also rich. Here’s 10 bucks…” Nobody parted with a bag of cashews in their purse or a bottle of Poland Spring they hadn’t finished from lunch. French thinks that the way to save Neely from Penny would have been to keep Neely in jail. I think anybody carrying small bills could have saved Neely that day.
The world in which Penny keeps his ass on his wallet but wraps his arms around Neely’s neck, and gets away with it, is simply untenable. Nobody wants to live in a world where people can be killed based on what they might do, or based on their perceived threat to others. Should people be allowed to kill a barbecue-splattered white man in camouflage gear and a MAGA hat based on what they know the Proud Boys are capable of? Do their actions become “justified” if the MAGA man says, “Trump won the election and I’m prepared to go to jail to see him reinstated”? Or maybe someone sees a white boy on the subway playing Call of Duty, and after he loses his game, he starts angrily shouting: “This is why I don’t have a girlfriend!” Can they kill him then, based on his likelihood to commit domestic terrorism?
Nobody wants that. The pro-Penny types want that only if poor people or people of color are the ones who can be killed because of their perceived threat. Justifying Daniel Penny’s behavior doesn’t lead to more safety but to lawless chaos.
Penny has to be prosecuted for this crime, and should be convicted. Penny behaved recklessly, and his recklessness killed somebody else. Treating the situation as anything else is madness.