Commentary on Political Economy

Tuesday 16 May 2023

Free Daniel Penny

How many wish that he had been in their subway car during a moment of danger?

Daniel Penny turns himself into the NYPD 5th Precinct in New York, May 12. PHOTO: EDNA LESHOWITZ/ZUMA PRESS

When Daniel Penny stepped forward on a New York subway to protect his fellow commuters from an obviously deranged man, the former Marine sergeant couldn’t have imagined that two weeks later he’d be perp-walked in handcuffs before news cameras outside Manhattan’s Fifth Precinct.

In one of the worst decisions by one of America’s worst prosecutors, Alvin Bragg on Friday charged Mr. Penny, 24, with second-degree manslaughter. The charge alleges Mr. Penny killed Jordan Neely, 30, by acting recklessly in keeping him in a chokehold too long. Neely was familiar to authorities from his long rap sheet and his presence on a list of the top 50 homeless New Yorkers most in need of help.


At first glance it looked like a replay of George Floyd, the black Minneapolis man whose death at the hands of white police officers in 2020 sparked riots. Rep. Alexandria Ocasio-Cortez played her part accordingly, quickly calling Neely’s death “a public execution.” Protesters blocked subway trains in Neely’s name.

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But Mr. Bragg may be losing the narrative here. Even before Neely’s death, Mr. Bragg was notorious as a district attorney who would go easy on repeat offenders but throw the book at a bogeda worker defending himself against a thug—not to mention his political grandstanding in indicting Donald Trump. Now the American people see a prosecutor who can’t distinguish between a mentally disturbed man prone to violence and a law-abiding citizen who served his country in uniform.


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One indication of the public’s reaction to Mr. Bragg’s charges is the legal defense fund set up for Mr. Penny. In just a week the GiveSendGo fund has raised more than $2 million. Mr. Bragg would do well to read through the comments.

“I am a small Asian woman and I have been terrorized in ‘safe’ areas by the mentally disturbed and/or racists with no one to come to my aid,” one donor writes. “I wish there were more people like you.”

“If he was identifying himself as a female,” writes another, “and wearing a dress and eye makeup and did the exact same thing he would be invited to the White House by Biden & Harris.”

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“Good luck Daniel,” yet another adds. “A lot of good people are rooting for you.”

In a civilized society, the strong protect the weak. A Marine uses his strength to fight for those unable to fight for themselves. Today it’s common to lament the state of American manhood—how many of us have been appalled by videos showing men standing by and doing nothing as a woman is attacked. Yet when a good man does step forward, he is treated, literally, as a criminal.


The way Mr. Bragg did this also speaks to the underhanded nature of the prosecution. He arrested Mr. Penny without convening a grand jury. Ultimately Mr. Bragg will still have to get the grand jury’s go-ahead to prosecute. But if he’s refused, he can claim to his progressive allies that he did everything he could.

Again, what are the interests being served here? Justice for Jordan Neely? For Mr. Penny? For Manhattan residents? Or Mr. Bragg’s own political interests?

We once understood that someone who sets off a chain of bad events by an act of aggression is primarily responsible for the consequences even if he didn’t intend them. The hard truth is that Neely set off the course of events that led to his death.

Yes, his death—and life—was tragic. His mother was brutally murdered by her boyfriend when Neely was 14, which the family says was the beginning of his troubles. But it isn’t quite true that he fell through the cracks.

In February, prosecutors offered him a good, no-prison deal for assaulting a 67-year-old woman—whose nose was broken and eye socket fractured—in exchange for 15 months of treatment at a residence for homeless men. He skipped out after two weeks and another arrest warrant was issued.

It’s certainly true Mr. Penny knew nothing of this history when he confronted Neely. But he also didn’t know if Neely was armed with a knife or other weapon. Above all, he didn’t know the district attorney would abuse his discretion to make Mr. Penny the scapegoat for the city’s institutional failures. It isn’t Mr. Penny’s fault that Neely was out threatening commuters instead of in treatment.

Mr. Penny’s hopes now rest with a grand jury that could refuse to indict and, failing that, a regular jury that could also refuse to convict because the evidence doesn’t support the claim he acted recklessly. Meanwhile the national attention is making the Manhattan district attorney the public face of lawlessness and violence on America’s city streets. Mr. Bragg may yet find he is as much on trial as Mr. Penny.

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