Andrew McCarthy on the Daniel Penny Case

Andrew McCarthy has this article in National Review on the Daniel Penny case. I do not always agree with him, but his take is always interesting. An extended excerpt from the article follows:

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.