INDIGNITY VOL. 3, NO. 76: David French, the punisher.


INDIGNITY VOL. 3, NO. 76: David French, the punisher.
NEW YORK, NEW YORK - MAY 12: Daniel Penny is escorted in handcuffs by the NYPD after turning himself into the 5th Precinct on May 12, 2023 in New York City. Penny turned himself in after being charged with 2nd Degree Manslaughter in the chokehold death of Jordan Neely. Neely was killed last week on the F train after being placed in a chokehold at the Broadway-Lafayette station by Penny. Witnesses reported that Neely was acting erratic on the train and screaming about being hungry and tired but had not physically attacked anyone before being placed in the chokehold. Penny was initially taken into custody by the NYPD for questioning and later released. Neely’s death was ruled a homicide by the medical examiner’s office, days after the incident. (Photo by Alexi Rosenfeld/Getty Images)

Was the System Too Gentle on Jordan Neely?

"THE RULE OF law is failing on New York’s subways," David French, the most recently hired member of the New York Times' stable of palatably conservative opinion columnists, wrote in today's paper. French was discussing the incident two weeks ago in which the ex-Marine Daniel Penny killed a fellow passenger on the F train, Jordan Neely, with a prolonged chokehold. The failure, French wrote, was that Neely "should not have been in that subway car."

This is a common interpretation, as more and more of Neely's history becomes public record. Neely was profoundly disturbed and unwell, and the Times reported that his name "was on a list informally known as the Top 50, a roster of people in a city of eight million who stand out for the severity of their troubles and their resistance to accepting help." On the day Penny killed Neely, there was an open warrant out for Neely's arrest, for violating his probation in a case where he pleaded guilty to punching a 67-year-old woman in the face in 2021.

If Neely had been locked up, as he should have been, French wrote, the killing would not have happened. But the killing also would not have happened if Penny hadn't killed him.

French was, like many other people before him, choosing not to focus on that other, more basic counterfactual. Neely was a loud, erratic, and "deeply disturbing" presence on the train, French wrote. "While reports are still incomplete," he wrote, "Neely was reportedly aggressive and menacing toward his fellow passengers."

And then Penny—who despite his name eventually making it into the press, and the Manhattan district attorney charging him with second-degree manslaughter, remains an obscure and oddly passive figure in the public tellings of the story—grabbed him and choked him to death. "There is no evidence that Neely assaulted anyone," French wrote, "but Penny acted to restrain him anyway, placing him in a chokehold."

How do you restrain someone from doing something they're not doing? This seems like a rather important question in understanding the story, but it hasn't stopped people, encouraged by Florida Gov. Ron DeSantis, from pledging more than $2 million to Penny's legal defense. Yet none of that was what French had in mind when he wrote "The rule of law has to apply to the most and least powerful citizens, or we will create a culture of impunity that can disrupt daily lives and, ultimately, dangerously destabilize communities."

The culture of impunity, for French, wasn't in the police blaming the choking on the person who got choked, or in politicians treating the choker as a folk hero. And the disruption to daily lives wasn't the killing. It was the "disturbing and dangerous encounters" that subway riders have with people like Neely, creating "tense situations where the proper course of action isn’t clear":

What if Penny had done nothing? Would everyone—including Neely—have emerged from that subway car unscathed? We can’t know for certain, and that lack of certainty creates the conditions for violence.

A so-far-undisputed fact—that Penny attacked Neely, not the other way around—became something uncertain. What might have happened if he hadn't? Would someone have ended up dead then, the way someone did end up dead because of the choice Penny did make?

But Penny could not be treated as a real moral agent, because French had already decided that Penny had been provoked, and that the provocation was the problem. If the eyewitnesses couldn't point to any physical provocation, then the provocation was spiritual, something bigger than Neely—Penny took life and death into his own hands because the rule of law had failed.

By "rule of law," French really meant "order," and by order, he meant incarceration. The system had failed Neely because it hadn't kept him behind bars. Here was how French narrated Neely's recent past:

Neely spent 15 months in jail while the case awaited resolution, but ultimately he was not sentenced to prison. Instead he was told to report to a treatment facility, where he was to remain for 15 months and stay drug-free. He left after 13 days. A warrant was issued for his arrest, but in spite of subsequent encounters with outreach workers and at least one with the police, he was not taken back into custody.

Think of the many failures that put Neely on the train that day. Treatment efforts were inadequate. The sentence for his unprovoked assault did not match the severity of the crime — and, in any case, it was not enforced. When he walked away from the facility, the police failed to arrest him again. One can both be troubled by the problems of mass incarceration and recognize that just sentences for violent crimes should remove the perpetrators from the streets for substantial periods.

Seeing Neely's humanity denied, when the news of his killing first broke, some people responded by, as John Ganz wrote, sentimentalizing him, "insisting he was harmless or bringing attention to his time as a street performer, sweetly doing his impressions of Michael Jackson." As Ganz noted, this was "deeply insidious"—the insistence on his goodness "basically accepts the premise of those celebrating his killing: that these are the type of facts that could justify and excuse it."

As more facts about Neely's violence and supposed intractability came out, that was what happened. Centrist liberals, alert against any error on the left, began questioning the whole idea that our system had neglected Neely—that if he was known to the city's outreach workers, and he'd passed in and out of treatment, he couldn't properly be called abandoned. The Times described his plea bargain in the assault case as "a carefully planned strategy between the city and his lawyers to allow him to get treatment and stay out of prison." Even if he did end up sick, filthy, and dead on the floor of a subway train, it wasn't quite right to say he'd been overlooked, was it?

French, as a conservative, didn't need to pretend to believe in a liberal Democratic city's humanitarian good intentions. He could blame the weakness of the system of punishment. But his version of the story contorted itself around its own awkward fact. His complaint about the lack of "just sentences for violent crimes" depended heavily—too heavily—on the word "sentences."

The problem with that comes from the earlier part of the story: "Neely spent 15 months in jail while the case awaited resolution." The system didn’t formally sentence him to prison for punching his 67-year-old victim, it just directly locked him up for it—for a year and three months, according to the police. It locked him up in a jail system that operates in open, ongoing breach of the Sixth Amendment, in conditions that promote violence and suicide. The city, and the rule of law, clearly did fail Jordan Neely. But they didn't fail to punish him.


New York City, May 14, 2023

★★★★★ The cat scratched at the air conditioner to try to hasten the day, then ran headlong to and from the windows when the people were finally awake. The fig plant on the balcony was wilting a little for want of water, nothing that couldn't be reversed. The sound of someone playing piano carried out a window. The breeze bustled cheerfully and benevolently around the bedroom. In the Park, down in the stubble by the Pool, a yellowthroat showed its black mask. Reeds were spearing up and out of the mud, brandishing their leaf points. A boy beat wood chips and dust back and forth with a stick till an adult told him to stop. Kids of assorted sizes on scooters of assorted sizes rattled along the walkway in loose formation. The waterfall made a lively gushing sound, though the water above and below was scummy and foamy, respectively. What clouds there were might have just been age-blown contrails. Toward sunset, wide blurry bands of blue and white and steely gray faded into one another on the northern sky.


Indignity Morning Podcast No. 67: The season for recriminations and slander.

Tom Scocca • May 15, 2023

Listen now (3 min) | The Indignity Morning Podcast is also available via the Apple and Spotify platforms.

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