NRPLUS MEMBER ARTICLE N ew York City does not have a justice system. It has a political system masquerading as a justice system. It is run by one party, the Democratic Party, which is the tool of progressives who see prosecutorial power as a weapon for achieving their race-obsessed vision of social justice.
If you want to know why Daniel Penny now faces criminal prosecution in the death of Jordan Neely, that’s why. It is an outcome the law did not require but that extortionate progressive politics demanded.
There are many things wrong with the federal government. One right thing about it is that prosecutors — all of them, from the attorney general and other top lawyers in Main Justice to the U.S. attorneys in all 94 federal districts throughout the country — are appointed, not elected. Only the president to whom they answer is elected and politically accountable. The federal system is designed to insulate the dispassionate rule of law from the heat of politics.
After being nominated, appointed federal prosecutors must earn Senate consent. In that confirmation process, they are expected to promise that partisanship and political ideology will not influence their law-enforcement decisions. You can argue that this is just for public consumption and that, in the end, they politicize justice all the time. That’s true, and the Biden Justice Department proves the point. Still, hypocrisy is the tribute vice pays to virtue. Even Merrick Garland, the former judge who has proven to be a disappointingly partisan attorney general, grasped that if he wanted to be confirmed, he needed to pay lip service to the ideal of nonpartisan law enforcement in his confirmation hearing. The ideal endures: Justice is supposed to be blind, with every American constitutionally guaranteed equal protection under the law.
But that is not how things work in the states, and certainly not in New York State.
In New York, county district attorneys are better understood as partisan elected officials, not politically detached law-enforcers. None more so than Alvin Bragg, the New York County DA. He is a paragon of what, in a Commentary essay a few years back, I dubbed “the progressive prosecutor project.” In the public mind, this project is the creation of billionaire currency trader George Soros. He is far from alone, though, in backing it financially — progressive funding streams run deep.
It’s nice to have legislative majorities and courts. Over the last 15 years, however, the radical Left realized that in modern America, after a century’s progressive overrun of the Constitution’s guardrails, there is no power like executive power to effect radical change. And no executive power is more consequential, and was more easily attainable in one-party jurisdictions, than prosecutorial power.
Prosecutors decide what laws get enforced and what laws don’t, who gets prosecuted and who doesn’t. Police can make arrests, but cases go nowhere if prosecutors won’t charge. And when cops know that there will be no prosecutorial follow-through — and that if they have to use force to subdue a suspect, there’s as much chance the DA will charge them as charge the perp — the number of arrests plummets. Crime then surges.
Through the end of the 20th century, DA positions were seen as party-controlled. In a one-party city like New York, Democrats would select a party-establishment lawyer, usually a former line-prosecutor who had a good reputation for competence and evenhanded law enforcement. That was what the public expected, so it was what the party establishment delivered. Because DA elections were noncompetitive, the campaigns were low-five-figure affairs.
In the last 15 years, progressives wrested control of the party from establishment Democrats. The DA’s offices were the spoils of this coup. Progressives realized they could overwhelm establishment candidates by investing six figures — even seven figures in big cities and New York’s big-city-sized boroughs — to get their own radical lawyers nominated and elected.
Those lawyers would then attack the system from within. They would inject their racial-justice theories into the law. In particular, they were taken with the insane theory of “disparate impact,” which holds that if the members of one demographic (specifically, young black men) were being arrested and prosecuted at a rate disproportionately high for their share of the overall population, it had to be because of police and prosecutorial racism — it couldn’t possibly be because that demographic was breaking the law at a higher rate than others.
Disparate impact is toxically nonsensical. Police are not on the prowl looking for black men to arrest. The vast majority of crime is reported to police; arrests based on lawlessness observed by police are comparatively rare. Crimes have victims, who describe the physical characteristics and race of the criminals who’ve victimized them. A high percentage of violent crime is committed by recidivist offenders, who become known to police. And most crime that gets prosecuted is resolved by plea-bargaining, a process in which defendants admit that they violated the law (and are too often allowed to plead to offenses less severe than the ones they actually committed).
The progressive prosecutor project’s disparate-impact theory has three disastrous results.
First, it results in non- or lax enforcement of the law against dangerous repeat offenders who will commit numerous other crimes if they are not incarcerated. Understand: A large percentage of crime goes unreported and/or unsolved; although their rap sheets are prodigious, recidivists are charged with fewer crimes — often many fewer crimes — than they actually commit.
Second, because disparate impact presumes that police are racist, cops are targets of the progressive prosecutor. For their own protection, they must reduce enforcement activity — abandoning the “pro-active,” intelligence-driven policing that was singularly responsible for the plunging of crime rates to record-low levels from the mid 1990s through the mid 2010s.
Third, because a great deal of crime is intra-racial (i.e., the perps and victims are the same race), disparate impact increases the ravages of crime in urban communities that can least afford it. This, naturally, intensifies the allure of criminal gangs to boys and young men. In their immaturity and desperation, they believe gang membership will lead to protection and profit — though it actually leads to increased risks of severe injury and death, and to arrest records that undermine future prospects.
Do the people of Manhattan want these results? Most of them do not, of course. But this is what inevitably happens when a one-party jurisdiction is taken over by radicals.
Manhattan (New York County) is the most densely populated county in the United States, with 1.7 million residents. The progressives who run the city scheduled their primary for June 22, 2021 — right as school was closing for the summer, when only activists were paying attention to politics. Just 250,000 people voted. Bragg, backed by big progressive money, unions, and endorsements, won with just over a third of those votes — about 86,000, or around 5 percent of Manhattanites.
That guaranteed that he would be the next DA, because the Republican Party is not competitive in Manhattan. When a result is a foregone conclusion, people do not go to the polls. Just 22 percent of registered voters in Manhattan turned out in the November 2021 general election — and that was mainly because there was a citywide mayoral election. (Republican Curtis Sliwa was going to do well in Staten Island, so those few Democrats who voted in the four more populous, Democrat-controlled boroughs did so mainly to assure that Eric Adams would win — which he did, by a two-to-one margin.) In the practically uncontested DA’s race, Bragg won with just 212,000 votes. Though that accounts for less than 15 percent of Manhattanites, it was enough to win a staggering 84 percent of those who bothered to vote.
Instantly upon entering office, Bragg issued the now-infamous “Day One Memo,” ordering his subordinates to apply the racially driven nonenforcement policies that progressives had elected him to implement — and will continue electing progressive prosecutors to implement until Manhattanites decide they’ve had enough, as San Franciscans recently did.
In every case, good-faith prosecutors, who see their job as evenhanded, nonpolitical law enforcement, have to answer two questions: Is there sufficient evidence to charge a crime as a matter of law, and should we exercise discretion to prosecute as a matter of public policy? The former question is straightforward. The latter is more complex. Progressives take it as a license for the executive branch to nullify the legislative statutes they are sworn to uphold; in reality, it is merely a recognition that resources are finite, that not every crime can be prosecuted, and that frequently other public interests outweigh prosecution in an individual case.
One matter that competent prosecutors always factor in when answering the second question is: Can we win a jury trial? The existence of sufficient evidence does not always mean that the answer is yes. It is one thing to say, as a textbook matter, that there is a technical law violation; it is quite another thing to say that, under the facts presented, twelve jurors are likely to render a unanimous verdict of guilt beyond a reasonable doubt.
That is why a reasonable, competent, law-enforcement-oriented prosecutor would opt not to charge the 24-year-old Marine veteran Daniel Penny with manslaughter — negligent homicide — in the death of Jordan Neely.
It is certainly possible that there is, technically, a law violation. Penny’s use of force was lawful at the start. That is why he was helped in subduing Neely by other passengers. That is why still other passengers on the train expressed gratitude that Penny had the courage to act when Neely was threatening them.
At a certain point, though, Neely was subdued. While a civilian is still allowed to use force necessary to detain a threatening person until the police arrive, the force has to be proportionate to the threat. Neely is said by the coroner to have suffocated. So even though Penny and other passengers tried to roll him into a position that would enable breathing, this was arguably done too late, such that the intensity and duration of the headlock Penny employed could be deemed unreasonable. When a person dies from an arguably unreasonable use of defensive force, even though that person instigated the confrontation, a manslaughter charge is rightfully on the table.
But should such a charge be brought in this case?
Manhattanites are train riders. They know how perilous the subway has become due to New York City’s policies of nonenforcement and reckless neglect of the mentally ill. They’ve all been frightened by someone like Neely — indeed, over the past decade, maybe even by Neely himself. They know how much they crave the protection of police and valorous civilians under circumstances in which their fellow citizens are being thrown to their deaths on the tracks, beaten, robbed, raped, and harassed, as sociopaths take over stations and train cars, using them as stages for shakedowns, shelters, drug dens, and lavatories, making them a dystopian nightmare.
Daniel Penny is now attending college after serving our country as a Marine for five years. He was protecting himself and passengers on the F train when he subdued Jordan Neely. He was put in that position by Neely, a predatory, mentally unstable career criminal with over 40 arrests to his name, who was fresh off a stretch in Rikers Island for punching an old woman in the face, breaking her nose and eye socket, and who habitually harassed and threatened subway riders. A reasonable prosecutor would conclude that, though Neely’s death (like his life) was tragic, a jury of Manhattan subway riders would probably not convict Penny of manslaughter. Such a jury would instead draw the rational conclusion that government prosecutors were trying to make Penny a scapegoat for the government’s own reckless failure to detain and treat Neely, and that things could have been even worse for innocent people had Penny not acted.
But Alvin Bragg is not a reasonable, law-enforcement-oriented prosecutor. He is an elected Democrat who was put in his position by race-obsessed progressives in order to put the DA’s powers in the service of their “social justice” delusions. In that context, the question of whether to charge Penny is a partisan political one, not a matter of balancing prosecution against other public interests, and not a matter of whether a prosecution in these circumstances would endanger New Yorkers rather than making them safer.
For the progressive-prosecutor project, the only fact that matters is racial disparity: Neely was black and Penny is white, so Penny must be charged. Whether there is a worthy case that would result in a jury’s reaching a guilty verdict is beside the point. As was the case in his unabashedly politicized prosecution of Donald Trump, Bragg will be lauded for putting his power in the service of the progressive agenda by charging Penny. Because the charges are purely political, the DA needn’t even worry about looking bad if there is an acquittal.
This is social justice, not real justice. This is also the governance that Manhattanites have chosen — at least the few who took the trouble to vote in a one-party town where self-destruction is the only choice on the ballot.