The System Did Not Deliver Justice for Jordan Neely, But It Was Not Designed To

Like many of my fellow New Yorkers, I am outraged that Daniel Penny killed Jordan Neely on a subway car (based on the perception of threat–which is highly racialized in this country–but no actual harm), and after standing trial in front of a jury of his peers, he was vindicated. But I am not surprised. 

The criminal legal system is not designed to deliver accountability. It’s designed to deliver punishment, and it has never done so in an even-handed way. This country has a long history of vigilante justice perpetrated by white Americans against Black, brown, anI indigenous people, without consequences. At the same time, Black Americans are disproportionately punished by the so-called criminal justice system and all of our other punitive institutions.

In a talk at The Riverside Church, I once heard Angela Davis explain that abolition is about creating a world in which prisons are no longer necessary. A world in which prisons are no longer necessary is one in which all people have the resources they need to live and thrive. As an advocate for restorative justice, I also believe that by creating and resourcing abundant pathways toward meaningful accountability for harm, we can decrease public demand for punishment through incarceration. 

Yesterday, the adversarial justice system delivered the message to Daniel Penny  and his supporters that his actions were “justifiable.” At the same time, the painfully familiar message to Jordan Neely’s family is that his life did not matter and that he was partially responsible for his own death. 

These are not the messages that our institutions should be sending. Daniel Penny can never restore the life that he took. But if he were to participate in a restorative process, he could grapple with the devastating impact of his actions, not only on the Neely family but on Black Americans and people struggling with mental illness, who will feel the sting of this verdict most acutely. Through a restorative process (which by definition, must be voluntary), he could offer a genuine apology, and take reparative action guided by the needs of those harmed. 

I don’t want to live in a city where my fellow subway riders feel empowered to respond to a perceived threat with violence. Nor do I want to live in a city where law enforcement is resourced above and beyond affordable housing and mental healthcare. I want to live in a city where a New Yorker who takes a life (regardless of their intention) is encouraged and incentivized to grapple with the impact and to make amends. 

But that is not what happens in the adversarial legal system where defendants are encouraged to minimize or deny culpability in order to avoid punishment. But it doesn’t have to be that way. It doesn’t have to be a zero-sum game. Regardless of whether you believe that violence is ever justified, it should not be taken lightly. There should be options beyond “guilty” and “not guilty,” that confront the devastating impact of violence (both interpersonal and systemic). The failure of the system to deliver justice or to make us safe, are two compelling reasons why New York City should prioritize and fund community-based restorative justice programs that focus on developing meaningful consequences for harm, coupled with pathways toward healing and repair.