Justice, tyrants and the mob

By now, you have already heard what happened last week on the New York Subway. A gentleman named Jordan Neely, who seemed to be experiencing a mental health crisis, reportedly had a threatening interaction with other subway passengers. One of those passengers, a Marine Veteran named Daniel Penny subdued Mr. Neely and in the course of doing so, allegedly caused his death.

My experience with urban public transportation is from a different city, and a few decades earlier, but I have seen my share of shady characters on the subway. I always felt safe on the subway during rush hour, when it was very white-collar and there seemed to be safety in numbers, but after-hours travel in the shadowy underground is not for the timid.

I also recall that the specter of homeless people suffering from mental illness is a part of everyday life in the city. Sometimes they ask for money; sometimes they yell at intersections. Often, we know them by name and associate them with specific neighborhoods. They were usually animated and could be disruptive–and they didn’t always smell great–but in my experience, they never hurt anyone.

Like most stories, there are bound to be two sides. I think the case will come down to what witnesses say that Mr. Neely did or didn’t do immediately before he was restrained. Was Neely’s provocation an assault, or was it speech? If it was only speech, was it speech that would make the elusive “reasonable person” perceive a threat of violence? I wasn’t there and I take no position. We will see.

What I find more interesting about the case is the sequence of events after the incident. First, Mr. Penny was questioned and released without charge. Then, protesters quickly organized and demanded his arrest. Shortly thereafter, Mr. Penny was invited downtown for a free sitting with a photographer and to post a $100,000 bond.

The question raised in my mind today is one that has been debated by legal scholars since long before the launch of our relatively young judicial system. How, when, and to what extent should public opinion influence justice?

The easy answer is that law enforcement should be in contact with the citizens. We’re learning, I think a bit late, that their demographics should even reflect the citizens. In most cases, the enforcement side of the equation is answerable to their respective governing authorities (i.e. state, federal, or local), except in the case of County Sheriffs, who are typically elected. The prosecutors follow a similar model. Federal, state, and municipal prosecutors, answer to elected officials but are directly elected at the county level.

Courts, on the other hand, should be independent and free of external influence. They should be able to rely upon and maintain the laws passed by representatives of a free people. That part makes sense to me. An alternate point of view is that courts wield a great deal of power and need to be held accountable. Public scrutiny keeps those powers in check and public approval is a source of much-needed legitimacy.

Personally, I think we enjoy sufficient representation from elected officials and that our justice system is robust enough to sort out any bad actors.

Resorting to mob action doesn’t cross my mind, but I have the privilege of knowing that my elected officials will return my phone call. People who feel less enfranchised will undoubtedly have another point of view.

Here in Nebraska, we vote to retain our judges after what’s called an “assisted appointment.” I’m comfortable with that system, but in Texas, Illinois, and a handful of other states, judges have full-blown, partisan elections with campaign contributions and all of the baggage that follows. Is that an appropriate amount of public influence? What’s the right formula? How do we best balance public accountability with independence and freedom from systemic compromise? It’s a tricky equation, and I sometimes wonder if we’re getting it right.

I also find it ironic that public influence would be linked to legitimacy. I suppose a court could go too far with an unpopular decision and lose public support, but at least for now, I am confident that the courts are better informed, more cautious, and ultimately more trustworthy than the general public.

Historians tell us that our founding fathers wrote our Constitution with two threats in mind: tyrants and “the mob.” Our Fourth Amendment is intended to protect us against law enforcement, but the founders dedicated a whole unelected branch of government to counter our mob-controlled, publicly elected officials.

When I see prosecutors appear to bend to public sentiment, I think of our darker days when hooded rioters plucked people out of jail for pre-judicial lynchings. I’m not suggesting that’s what happened in New York.

We simply can’t know, but it’s one of those areas that we need to watch carefully. Our system of justice is far from perfect, but I think it’s fair to most people, most of the time, and we need to preserve that trust with our watchful eyes.