Daniel Penny’s Two-Pronged Indictment

Daniel Penny was indicted last week in New York for his involvement in the death of Jordan Neely. The indictment hasn’t been unsealed, but the New York Post reports that New York County prosecutor Alvin Bragg filed second-degree manslaughter and criminally negligent homicide charges against Penny, who will reportedly be arraigned later this month in Manhattan Superior Court.

Second-degree manslaughter carries a more substantial sentence in New York than criminally negligent homicide. Second-degree manslaughter, which occurs when a person “recklessly causes the death of another person,” is a Class C felony, and carries a 15-year maximum sentence. Under New York law, a person acts “recklessly” when he is aware that his conduct poses “a substantial and unjustifiable risk” of causing a proscribed result (in this case, another person’s death), and that his taking the risk “constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Criminally negligent homicide, by contrast, is a Class E felony, and carries a 4-year maximum sentence. It is defined as causing another person’s death “with criminal negligence,” that is, when the person who caused another’s death “fail[ed] to perceive a substantial and unjustifiable risk” that their conduct would do so.

The two charges differ only in their assessment of the offender’s mental state at the time he committed the crime. Second-degree manslaughter applies to an offender who is aware of his conduct’s recklessness, while criminally negligent homicide applies to an offender who is culpably ignorant of the same.

Neither charge should apply in Penny’s case because, in restraining a mentally ill man with multiple felony convictions who made death threats against other passengers, the risk he took was neither “unjustifiable” nor “a gross deviation from the standard of conduct a reasonable person would observe” if confronted with the same situation. That most “reasonable people” these days would decline to intervene says more about the average person’s timidity than Penny’s criminal liability.

Why did Alvin Bragg reportedly include both charges on the indictment? Former New York prosecutor Andrew McCarthy suspects Bragg is trying to induce a jury to settle on criminally negligent homicide as a compromise verdict:

I suspect that Bragg is engaged in strategic charging here. In light of Neely’s menacing behavior on the subway car before Penny intervened, the prosecutor grasps that a jury could easily conclude that Penny was justifiably acting in self-defense (which legally extends to the defense of other people as well). If Bragg had charged just one count, the issue would come down to “guilty or not guilty?” — and the jury could find that not guilty was the fairer result.

If Penny wants to avoid creating the incentive for a compromise verdict, he could seek to strike the criminally negligent homicide charge by arguing it is being applied to the same underlying conduct as the manslaughter charge. If he does that, though, he’d risk setting himself up for north of a decade in prison if the jury feels the need to convict:

For his part, then, Penny faces a tough choice. He could argue that the negligence count is just a subset of the recklessness count — i.e., that Bragg has taken what is really one offense and multiplied it into two to increase the chances of getting a conviction. But the remedy for that would be to eliminate the less-serious negligence charge — meaning, if he weren’t acquitted, he’d be looking at a harsher sentence.

Once again, apparently, New York is facing Daniel Penny with an impossible decision.

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