The Tragedy of Jordan Neely and Daniel Penny
If not for America's prohibition on involuntary commitment, they would probably have never met.
On May 1, 2023, a 30-year-old man and one-time Michael Jackson impersonator named Jordan Neely died after a 24-year-old student and former Marine named Daniel Penny placed him in a chokehold on an F train traveling uptown between the 2nd Avenue and Broadway-Lafayette stations in Manhattan.
Neely entered the train at 2nd Avenue loudly complaining of hunger and thirst, throwing down his jacket and shouting that he didn’t care if he went back to jail, even for a life sentence, and that he was “ready to die.” Penny pleaded not guilty to manslaughter and criminally negligent homicide, and his attorneys have argued that he was trying only to restrain Neely, not to kill him. (Passengers other than Penny were worried about what Neely, judging from his own words and demeanor, might do).
The prosecution tried to turn the focus not on whether Neely’s behavior could have been deemed threatening, but on whether Penny acted negligently in restraining him. The more serious charge of second-degree manslaughter, for which Penny faced up to fifteen years, was thrown out last Friday after the jury failed to reach a consensus, and on Monday, Penny was acquitted of negligent homicide.
The case became a flashpoint in New York’s and, more broadly, America’s ongoing debate about public safety, especially with regard to the nation’s large population of unhoused people, many of whom suffer from severe mental illness and drug addiction. Because many New Yorkers have been frightened by a mentally ill person on public transit before, just about everyone has an opinion about this case. And due to its particulars—Penny was a white veteran, Neely was a homeless black man—strong emotions and strident arguments have overwhelmed any kind of productive conversation about public safety and the mentally ill in favor of canned philosophies regarding the moral status of the persons involved.
Remember: Persuasion is now the home of American Purpose, Francis Fukuyama’s blog, and the Bookstack podcast! Opt in using your account settings to receive all of this great content:
On the left, many activist groups and elected figures rejected the verdict out of hand. Some tried to depict Neely as a man pushed to the limit by poverty, and whose difficulties end there—despite the fact that Neely had been picked up two years earlier for breaking a 67-year-old woman’s nose and fracturing her orbital bone as she exited the subway, in exactly the type of random, violent outburst to which the severely mentally ill are sometimes prone. On the right, meanwhile, many have argued that Penny shouldn’t be tried, but celebrated as a hero and even a patriot, with seemingly very little recognition that a man, Neely, is now dead—or even that he, or any others suffering under similar circumstances, were ever deserving of sympathy to begin with.
Reasonable people can and will disagree as to the merit of the charges filed by the Manhattan DA’s office, to the rightness of Penny’s intervention, and to his acquittal. Confined in the car with Neely and a bunch of frightened and vulnerable people, Penny can hardly be said to have gone in search of a proving ground that day. The question of whether he misapplied the choke that must have seemed like the least of all bad options was rightly a main focus of the trial.
What shouldn’t be in dispute, however, is that the status quo regarding crime, mental health, and homelessness is intolerable. America needs a real conversation about the decades of failed policy that conspired to put Neely—and Penny—in harm’s way.
By many accounts, the best course of action for treating severely ill people who cannot or will not submit to necessary treatment is to treat them anyway, using the force of the law, via involuntary commitment. But this once-accepted method of intervention has been put out of reach for most in need of it by years of deinstitutionalization, including legal precedent to do with “patients’ rights,” and increasingly prevalent moral attitudes that (understandably) reflect a wish not to return to the worst forms of institutionalization of years past.
By now, the effects of America’s turn toward deinstitutionalization are well-studied: beginning in the 1950s, a growing public awareness of the harms of “warehousing” the mentally ill in institutions prone to squalor and abuse bore up a successful legal activist campaign against the state’s right to confine individuals to asylums on an involuntary basis. Particularly notable are the contributions of Hungarian-American psychiatrist Thomas Szasz, who, among other provocative arguments that jibed with the ideological upheaval of the time, criticized the entire concept of “mental illness.”
In 1963, in one of his final acts in the White House and in life, John F. Kennedy signed into law a bill setting the country firmly on the path to closing its public institutions, which were meant to be replaced by a system of community-based mental health centers (they would never fully materialize). This was followed by a clutch of influential court rulings. In 1975, the Supreme Court handed down its decision in O’Connor v. Donaldson, in which it argued that the state cannot confine a mentally ill person against their will if they’re not an immediate danger to themselves or others. Three years later, in 1978, a federal court in the Third Circuit ruled in Rennie v. Klein that patients had a right to refuse treatment. Citing Thomas Szasz in its decision, the court nullified the criterion used before by almost all states when deciding whether to involuntarily commit—that is, the “need for treatment.” Addington v. Texas, decided by the Supreme Court in 1979, raised the bar for involuntary commitment even further, from a mere “preponderance of the evidence” to a standard that was “clear and convincing.”
This pendulum-swing back towards patients’ rights made it objectively harder for medical authorities to keep unwilling patients for treatment. And as it happens, many patients are, in fact, unwilling to submit to treatment, because nothing does more to harm one’s powers of self-awareness, and one’s ability to recognize the necessity of often lengthy protocols, than debilitating mental illness. “Ironically,” write Arthur Williams and Arthur Caplan in The Lancet, “[Szasz’s approach] did as much to undermine autonomy as it did to protect it.”
From the 1950s to the end of the 1970s, public asylum populations shrank by nearly 75% to just 150,000 patients, even as the country’s population exploded. Meanwhile, America’s homeless population ballooned to more than 300,000, as its prison population increased exponentially. And while the statistical relationship between deinstitutionalization and mass incarceration is unclear, people suffering from severe mental illness are, in fact, more likely to commit violent crimes, and our current revolving-door setup does very little to meaningfully deter people from that path. Certainly, some of those who might’ve received treatment on the basis of involuntary commitment, and eventually become well as a result, would be less likely to commit criminally violent acts in the future. As the psychiatrist E. Fuller Torrey pointed out in the 1990s, police have, since the closing of public institutions, routinely used disorderly conduct charges to pick up mentally ill individuals on almost purely humanitarian grounds.
Neely’s too-short life is a case-in-point for whom the current system fails. In and out of jails and hospitals for the past decade, Neely was 14 when his mother was murdered by his stepfather. Her remains were discovered in a suitcase discarded on the shoulder of the Henry Hudson Parkway, and when he was 18, Neely testified in the murder trial. Contemporaneous reports compiled since his discharge from foster care at age 21 depict a man of profoundly wrecked psyche, who suffered from major depression, schizophrenia, PTSD, the destabilizing effects of synthetic cannabinoids, and the associated bodily ravages of severe mental illness and life on the streets.
Released from Rikers Island on a plea deal following his attack on the 67-year-old subway passenger two years ago, Neely was required to complete a 15-month stay in an intensive inpatient treatment center. He walked out after 13 days. Three months after that, he was dead. And his case isn’t unusual: according to one journalist, of the more than 45,000 individuals “engaged” by the NYPD in the subway system in 2022, only 7,700 accepted assistance. Too often, when offered assistance (however dubious), psychiatrically unwell people prefer to go it alone—as the courts have established is their right. As the critic and author Freddie DeBoer has argued, “Our mental health crisis is not merely a crisis of access; it is also a crisis of refusal.”
As others have argued, much residual negative feeling for the old public asylums might be influenced by the film One Flew Over the Cuckoo’s Nest, based on the 1962 novel by Ken Kesey. A box office smash-hit in 1975 (at the height of Szasz-mania), the film—which is fiction—depicts a wily Korean War veteran portrayed by Jack Nicholson who cynically opts to avoid incarceration by feigning insanity, only to be installed at an asylum and eventually lobotomized. Along with Spanish painter Francisco de Goya’s terrifying “madhouse” scenes—indelible depictions of the hopelessly unwell and the squalid and predatory institutional settings to which they were once consigned—Cuckoo’s Nest retains the capacity to shock precisely because it is, in its empathy for the “warehoused” and forgotten, a searing indictment of a society that has failed its most vulnerable citizens.
But neither Goya’s nor Kesey’s madhouses have much to do with today’s institutional settings, in which patients often stay for only a few weeks, and are usually not (again, unlike Kesey) restrained or subjected to invasive treatments against their will. And contrary to the desolate asylums of old, newer facilities are often expressly designed to be open, therapeutic places: Slated to open in 2028, a billion-dollar, state-of-the-art hospital under construction in Washington aims to emphasize “biophilia” (man’s affinity for the natural world) to augment proven medical interventions, allowing patients to convalesce in a visually pleasing environment suffused by daylight and featuring multiple leafy courtyards.
In their rehabilitative deficiencies, to say the least, our prisons and jails fall well short of resembling anything like a functional surrogate asylum network—though they are usually filled with sick people, anyway: According to the Department of Justice, some 44% American inmates are thought to have mental health disorders. And severely mentally ill people are, in particular, overrepresented in prison populations. Given that some 6 percent of the population suffers from severe mental illness, estimates for the beds required range from 40 to 60 per 100,000. The Substance Abuse and Mental Health Services Administration estimates we currently have about 18 per 100,000.
In New York, in particular, the stirrings of a new, possible reality are beginning to take hold: Mayor Eric Adams, widely considered a lame-duck, has been able to bolster his tenuous standing by making overtures towards expanded powers of involuntary commitment. Democratic Representative Ritchie Torres—a rising star in the party who is expected to run as a replacement for either Adams or Governor Kathy Hochul—has explicitly pledged to expand involuntary commitment and secure more federal funding to build out inpatient capacity.
When I look at Goya’s picture of institutional life in 18th century Spain, I see human beings haunted by terrifying delusions, left to waste away in the dark, the dank, and the cold—but this resembles nothing so much as the current state of affairs in our subways, underpasses, and public parks. Contrary to the medical reality of Goya’s day, or the imagined setting of Cuckoo’s Nest, we do have the power to beat back severe mental illness in a patient’s brain, in an environment that is safe, clean, and calm. Not every patient will get better, but many will, and every single one deserves that chance. The bottom line is that inside of treatment, some of these people will get better. Outside of it, almost none will.
Jordan Neely deserved better—as did Daniel Penny, who ought still to be an anonymous student, unfamed and unhated, one among millions who work and study quietly in this city. But no matter whether you support the trial outcome or not, what a broader sense of justice requires of us is to look unflinchingly at the status quo surrounding mental health and homelessness and decide if it’s the best we, as a wealthy, modern country, can do. The answer should be “No.”
Brendan Ruberry is Production Editor and Podcast Producer at Persuasion.
Follow Persuasion on X, LinkedIn, and YouTube to keep up with our latest articles, podcasts, and events, as well as updates from excellent writers across our network.
And, to receive pieces like this in your inbox and support our work, subscribe below:
This is the best commentary I’ve read on the Neely-Penny case. The problem at base is, indeed, involuntary commitment or the lack of it. The case was never about race, although some want to divert it there for their own agendas. New York City, and particularly the subways, are teeming with the mentally ill. Not all, of course, are dangerous, but some are, and there seems to be no legal way to prevent their having free rein to terrorize the rest of us. We all understand the need for properly controlled institutions and that we should never return to the old cruel asylums. But it is also cruel to leave people to live on the street who cannot care for themselves. It is also cruel to the rest of the population who has to try and avoid the violently insane who churn through the legal system. Neely had been arrested 42 times. Unfair to him, to the police who have to keep arresting him, and to everyone who had to fear what he might do next.
I hope Ritchie Torres and/or Eric Adams can do something about this, but I expect our judiciary is going to have to revisit the whole patient rights standards that have led to this sorry, and dangerous, state of affairs.
This article at least lays out the history of how we got here, and may be a first step to reevaluation.
A good and quite fair overview of the problem. I'd add one driving factor to the analysis: the role of the ACLU in advocating very strongly for the individual right to refuse treatment. It was the ACLU, in fact, in cooperation with then Governor of California Ronald Reagan, whose voice was strongest in urging closure of the then quite horrific institutions -- in exchange, as you mention about JFK, for money that would pay for better institutions in the future.
I don't know if the ACLU has changed its stance, but a "right" that the seriously mentally ill can meaningfully invoke while lacking ordinary reasoning capacity is a mirage of what liberty guarantees. And the consequences of that ruin of an argument are all around us.
But that is not the only damage that's been done by well-meaning advocates. Like all prosecutors, Manhattan DA Alvin Bragg has fundamental discretion to bring a case to trial or not. While I have to assume his office believed that Mr. Neely was a worthy victim, DA Bragg was tone deaf to the fact that Mr. Penny was acting as any reasonable person in that situation would. The measure of any potential negligence in his actions was far outweighed by the recurring problem of the homeless mentally ill in New York's subways and elsewhere.
Bragg's mistaken view of his city's residents is now obvious, but it comes from a place of misplaced empathy. Bragg's focus was on Mr. Neely, and it obscured any feeling for the people who ride the subway every day. How could any jury of Mr. Penny's peers not have seen that?
I hope it's now time to fulfill the promises of those original bargains, and to see that the billions of dollars being spent on so many programs asserted to help those with serious mental illness have always had a logical and socially beneficial end that has been ignored.