Daniel Penny has been acquitted of the subway killing of Jordan Neely, but the New York City criminal justice and mental-health-care establishment is guilty of creating the conditions whereby a deeply disturbed man known to be in the throes of psychological crisis wound up melting down on a subway car, hurling threats at passengers.

Should Penny, a Marine trained in hand-to-hand combat, really have absolved of any penalties after placing Neely in an asphyxiating chokehold, and keeping him in it even after he was debilitated? From where we sit, it feels wrong to endorse his actions and its consequences.

Yes, as even the prosecution acknowledged, Penny was indeed disturbing and scaring passengers; some intervention was warranted. But life-ending intervention was extreme, which is why we backed the charges Manhattan District Attorney Alvin Bragg brought when he brought them.

That having been said, we didn’t sit on the jury and didn’t hear all the evidence, so we’re loath to replace our judgment with that of 12 of Penny’s peers who were doing their essential duty. This was a difficult judgment call; Penny did the right thing up to a point, and reasonable minds can disagree about when that point arrived. The jury struggled mightily for days over the manslaughter charge last week, then Monday unanimously decided against the criminally negligent homicide count.

There is no debate, however, that New York is a place where far too many people who need and deserve extensive mental-health treatment — even assertive treatment they never asked for — are rarely if ever going to get it, and that’s a tragedy. Over the years, Neely had cycled in and out of hospitals, where practitioners including psychiatrists had noted his mental distress. He was on the city’s “top 50” list of homeless individuals who are in and out of the throes of mental-health crisis.

It is not only the case that “the system failed him,” as some critics are claiming, if by that they mean to simplistically suggest that it never made a good-faith attempt to address his psychosis.

What the system failed to do is prescribe sufficiently strong policy medicine. In November 2021, Neely punched a 67-year-old woman in the face, injuring her severely. He was charged with assault and spent 15 months in jail while awaiting resolution of the case. In February 2023, he pleaded guilty — and, in lieu of prison or other punishment, sent to live at a treatment facility in the Bronx.

He was supposed to stay there for more than a year; he was supposed to take medication; he wasn’t supposed to leave without permission. He walked out less than two weeks later.

“The system” cared. The system tried. The system engaged with Neely and went out of its way to match him to help rather than locking him up and throwing away the key. The core problem is that the same system had no way of ensuring that Neely would actually follow through on the commitment he gave the court. Put differently, there should’ve been locks on that facility’s doors.

On this, Mayor Eric Adams and his top mental health advisor, Brian Stettin, have the right approach. In rare cases when people are at risk to themselves and others, when they don’t recognize their own psychosis, Adams and Stettin want the state and health-care practitioners to step in. In this case, caring for someone meant exercising tougher love.

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