A bad Penny: The unfair acquittal in Jordan Neely’s death

Daniel Penny killed Jordan Neely on the F train in New York on May 1, 2023. In case you forgot, Penny put Jordan Neely in a chokehold until Neely died of asphyxiation, on the floor of a subway car, in plain sight. Yesterday, in New York City, Penny was found not guilty of criminally negligent homicide, after the judge had dismissed the more serious charge of manslaughter because of a hung jury.

This is America’s war on the homeless, on the mentally ill.

If anyone ever told you, “you don’t ride the subway; you can’t judge what happened” — don’t believe them. I spent eight years riding New York subway cars. That included plentiful encounters with homeless/unhoused people, including people who shout. Someone screaming that they need food and don’t care if they die is someone literally asking for help, and it is a mitzvah to give them food. Not everyone has the composure to respond that way when they feel scared, but that’s what’s called for.

And that’s also Torah law: like many questions in halakhah, there’s debate about the best way to help someone — kind words, money, and food are all options — but unlike almost every other subject in Jewish law, there is no debate about whether one must help as best one can.

The marine, Daniel Penny, on the other hand, was in the category of a “rodef l’hargo” — someone pursuing another person to kill them. Under such circumstances, it would be a mitzvah to stop him from killing Neely, even to the point of physically attacking Penny to end his assault on Neely.

There is no version of reality in which the proper punishment for scary speech is death. Not in Torah, not in any moral philosophy or ethical theory. And as we learned when this all happened in 2023, Neely’s scary speech was “I need food and I don’t care if I go to jail; I don’t care if I die.” The first response to that can only be, “Can I help you get some food?” No matter how loud someone is, no matter what they do with their wardrobe. (Neely threw his coat on the ground and said, “Someone is going to die” — perhaps meaning he himself wanted to die. But whatever he meant, it still is no excuse to kill someone.)

Every response other than an offer of food is morally inadequate.

People who say “you don’t know what went on/what it was like/what happened” are actually condoning homicide.* People who accept this acquittal as fair are condoning homicide. There are none, zero, no circumstances in which that kind of aggressive speech can provide an excuse for killing someone. Saying, “I don’t know how I would have responded” to Jordan Neely’s angry outburst is more honest. But as for myself, I know how I would have responded, because I have literally been in that situation.

What if someone had asked Neely to calm down, and he went to assault them physically? Even under those radically worse circumstances, where physical restraint would make sense, there is still no version of reality in which a mentally ill individual deserves to be killed, or where it would be permissible to simply kill him. There is no version of reality where it would be OK for Penny to keep up a chokehold for 15 minutes. And the Torah and the rabbis agree. Even in the case where someone is a rodef l’hargo, pursuing someone with intent to kill (which still would not apply here), if you stop that pursuer by killing him, when some action less than killing would have worked, then you are also guilty of murder or manslaughter (based on Talmud Sanhedrin 74a and 57a**). That is our Torah law.

It was painful and utterly repellant, when all this happened in 2023, to see people on the right, who talk about traditional values and being pro-life, show their true hand: murder of the vulnerable is ok if they impinge on your space. In the days following Neely’s death, Ben Shapiro couldn’t bear to describe what Penny did in any other way than saying he was acting “in self-defense” (though in fact Penny was never threatened in any sense). Batya Ungar-Sargon told non-New Yorkers to shut up and declaimed how sad she was that real men didn’t stand up to defend their womenfolk more often in the subway.

Expect even more gloating b.s. this time around, following the failure of the jury to hold Penny responsible for Neely’s death. As of the day of the verdict, if you want to hear Megyn Kelly praising God because Penny was freed, and Ungar-Sargon talking about “this great day for our nation,” you can watch this grotesque video. Oh, and they both also push the false narrative that Trump, like Penny, has been persecuted by the system, and that there is no such thing as toxic masculinity, and that there is no racism in this country.

The bottom line is this: every person who tries to justify Jordan Neely’s death, or to divert attention from it by focusing on how Neely seemed threatening, or to hide behind the verdict of the jury, is participating in the despicable way American society treats homeless people and mentally ill people.

Each person is a full, complete, whole world. In the middle of this war killing tens of thousands in Gaza, in the middle of our prayers and anguish for the hostages, in the middle of vast tragedies around the world, famine in Sudan, genocide against the Uighur in China, let us not forgot one soul who was murdered on a subway train more than a year and a half ago.

That’s Torah, that’s ethics, that’s humanity. If you want to learn some more Torah, then watch the example of this video of Jordan Neely’s family and supporters protesting the verdict. As the first speaker says, “If you’re angry, if you’re hurt, go help someone. That’s how we beat the system.”

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* homicide – whether those people are precisely for “murder” in any degree, or “manslaughter” or “criminally negligent homicide,” is not the point; you are for taking lethal action against the homeless or mentally ill, or more broadly, against the vulnerable, on the grounds of being scared by their speech. More than this: for those on the right celebrating Daniel Penny, there is not just acceptance of Neely’s murder but outright glee over it. Such a demonstration of desire for cruelty is detestable, but that desire has become the norm for a large part of American society.

** Sanhedrin 74a, as translated in Sefaria.org: