With Malice Aforethought

The Killing of Jordan Neely and the Virtual Lynch Mob

I didn’t want to react quickly to video of Daniel Penny killing Jordan Neely, a homeless black man, on the F train. You’ll notice that I still refer to it as a “killing,” not yet “murder.” It was ruled a homicide, but murder requires malice, and it’s not established whether or not Mr. Penny maliciously intended to end Mr. Neely’s life. There is certainly some evidence he did, as well as possibly exculpatory evidence. All of this evidence is being shared online endlessly and being discussed on the TV news. But ultimately that’s not for the public to decide: a court of law has to establish the facts. This is why the decision not to charge Mr. Penny is so troubling and strange: he may be innocent of murder in the legal sense. He is innocent until proven guilty, but anytime a homicide is committed, an investigation should be made into its nature.

What seems self-evidently true to me is that the decision not to charge Penny as well as the killing of Neely is the result of a culture and climate of opinion that does not value the life of the homeless, particularly if they are black. I don’t think one can separate Neely’s killing from the climate of hysteria and fear over the threat of crime and disorder in the subways, the loathing, and disgust for the homeless and the mentally ill, the false impression, given especially to those who are not from the city, that every day on the trains is some Hobbesian state of nature. The reaction to Neely’s behavior, the need to restrain him in such a violent and dangerous manner, was most likely conditioned by this climate of fear. That is not to say the issues in question—homelessness, mental illness, violence on the subway—are not serious, but the public discourse about them is not serious: it is sensationalist, raving, pornographic. And this act of vigilanteism, whether foolish or vicious or both, is the plain result of the passions it unleashed.

But what has been deeply disturbing is the public reaction to Neely’s death. What people are essentially saying is “this man’s life was worthless” and, as a result of his criminal record, “he had it coming.” If this was murder, and I strongly suspect it to be, Neely’s past actions and character are immaterial. Penny could not have known of them. Murder is murder. The person does not have to be nice or good or socially useful for it to be murder. The state charges people with murder even when they are not loved, forgotten, dangerous, or hated. The only reason to parade Neely’s past in public is justify, excuse, of even celebrate his killing. And plenty of people seem to want to do just that.

Neely’s death has been described as a lynching. This is an extremely grave thing to charge. But what seems completely unquestionable to me is that the people who have shown cruel indifference or contempt or glee about the killing of Jordan Neely are the spiritual equivalent of a lynch mob even if his death was accidental or a crime of passion rather than premeditation. They are part of a lynch mob after the fact. They have decided—on reflection, out of personal danger, and with malice aforethought, as they say of murder—that Neely’s life was worthless. Any many apparently feel total comfort howling like a lynch mob in public. The passengers on the train can plead to being frightened or confused. Penny can say it was not his intention to kill or permanently harm Neely. Even if that may not be true, it is possible in principle. The people expressing this malicious disdain for Neely’s life have no such defense available. They know exactly what they are saying, their intent is clear: they want to make his death into something either of no account or desirable. They don’t care if it was murder or not, in fact, they hope he was killed intentionally and with malice, because that’s what they think should happen to such people.

We throw around the term the banality of evil often, but this is an actual example. For the most part, these are normal, boring, everyday people, not possessed of extraordinary demonic or sadistic tendencies, but yet they are engaged in evil. What the public reaction to this killing reflects is a loss of the actual meaning of words and actions. So very few people seem to have even a basic understanding of right and wrong.

This brings me to my next point, which is the tendency among some liberals and leftists to sentimentalize Neely’s life and death by insisting he was harmless or bringing attention to his time as a street performer, sweetly doing his impressions of Michael Jackson. This too is deeply insidious, infantilizing, and racist. In fact, it is so classically racist in the American mold as to shock: Oh, he was a good one? So, he sang and danced?

Neely’s life did not matter because he was pleasing to others or a perfect victim. It mattered, full stop. That is why his death must be properly investigated. There can be no one so low as to be beneath the protection of the law. That is an absolute and unquestionable principle of justice. And it’s a trap to try to saint him in death. It basically accepts the premise of those celebrating his killing: that these are the types of facts that could justify and excuse it. One frightening story from Neely’s past will make the whole thing crumble. Neely may have been a kind man, he may have been a cruel man, Neely may have been mentally ill, Neely may have been a dangerous criminal, he may have been “socially useful” or “useless”, he may have been all these things at different times in his life: none of that matters. He was a man, not a rabid animal.

I think the public response to Jordan Neely’s killing demonstrates a deep moral rot in our city and country. It shows that sentiments that were once made shameful are now being openly expressed in public. I generally try to stay optimistic and believe people are more good than bad, or, at least more docile than ferocious, but if this is where people are at, to the point where even public officials will not speak up properly, then I genuinely fear what comes next.