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A jury rightly has found Daniel Penny not responsible for Jordan Neely’s death.
It is the voters of New York who are.
We foolishly elected policymakers like former Gov. Andrew Cuomo, state Assembly Speaker Carl Heastie and City Council Speaker Adrienne Adams, who enacted extremist policies that upended the bail laws and tied police officers’ hands when dealing with violent suspects. We elected a progressive prosecutor, Manhattan District Attorney Alvin Bragg, whose day one commitment was to rehabilitate career criminals and prosecuted those who fought back against them.
We voters became so enthralled with progressive ideologies that we abandoned our central civic responsibility: protecting vulnerable lives.
In May 2023, Neely, a schizophrenic high on K2, was railing violently at passengers in a crowded subway car. Witnesses say they feared for their lives. Neely’s 42 previous arrests included his 2021 subway assault on a 67-year-old stranger, breaking her nose and fracturing her orbital bone. At the time of his death following Penny’s restraint, Neely had an arrest warrant arising from that case.
Penny, a 26-year-old former Marine, restrained Neely to protect his fellow passengers.
Politicians and the criminal justice system didn’t take responsibility to keep Neely incarcerated or in the supervised treatment he desperately needed. Instead, Bragg went after the man who tried to stop him.
Left-of-liberal aspirations for “racial justice” led to our many recent overlapping laws that allow obviously dangerous and sometimes psychotic predators back into our subways and streets. Of course people get hurt. And we are ultimately responsible.
Performatively virtuous concerns about “mass incarceration” inspired the irresponsible statute in 2020 that made it literally impossible for judges to set bail on dangerous defendants for hundreds of offenses, including punching a stranger — a hallmark of violent psychotics like Neely. Instead, offenders are shuttled off to “supervised release,” a program for which profoundly disturbed defendants were not eligible pre-bail reform, since it provides no tangible “supervision.”
So, predictably dangerous offenders now hurt more New Yorkers before they are eventually incarcerated. Indeed, in the first half of this year, there were 71% more violent felony defendants who had three or more pending cases than in the same timeframe in 2019, pre-reform.
I saw one such reoffender, Assamad Nash, when I visited Rikers Island’s psych ward last year. Before Nash murdered Christian Yuna Lee in her Chinatown apartment in 2022, an undercover cop had arrested him, like Neely, with K2 (“I love K2,” Nash told him). Thanks to bail reform, Nash had been out on “supervised release” for four open cases, including, like Neely, assaulting a stranger on the subway.
New Yorkers chose “racial justice” and obsessive decarceration over the safety of Nash and Neely’s victims.
More and more dangerous criminals are on our trains and streets because of our 2020 discovery reform, also championed and signed by then-Gov. Cuomo and legislative leaders. The law forces prosecutors to collect mountains of irrelevant material in short timeframes or face dismissal of their cases. The inevitable result: The number of dismissals increased by half and is now at 62 percent of all cases. The conviction rate, correspondingly, fell from nearly half of all disposed cases to barely a quarter.
Worse, under the terms of the discovery law, New York City’s criminal court tossed 31% of all prosecuted cases this year for “speedy trial” violations — not because justice demanded dismissal.
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In real numbers, that’s 37,688 more time-clock dismissals than in 2019 (when the rate was just 5%). Tens of thousands of criminal acts go unmanaged and unpunished. As a city and state, we just let the offenders go free to do it again. We are responsible for what happens to the victims.
In 2020, the City Council passed a law preventing police from using even basic grappling techniques with a resisting subject on pain of personal criminal prosecution. This policy used such sweeping language that a state Supreme Court judge in Manhattan ruled it “unconstitutionally vague.” But that ruling was overturned on appeal, and the “diaphragm law” was reinstated.
NYPD officers thus have every incentive to avoid engaging with someone exactly like Jordan Neely: violent, resistant, and perfect for a politically charged case with racial overtones against anyone who tries to restrain him.
All this left Daniel Penny on his own in a crowded subway car of scared New Yorkers facing someone who should have been under psychiatric and criminal supervision. Daniel Penny stepped up to protect his fellow citizens. But, New York: We are responsible for what followed. And until we vote for better, more sane criminal justice laws, we will continue to bear that responsibility.
Hannah E. Meyers is a fellow and director of policing and public safety for the Manhattan Institute.