The trial of Daniel Penny, accused of killing a homeless man, Jordan Neely, brings into focus issues far beyond Penny’s guilt or innocence. They remember Senator Daniel Moynihan’s essay from 1993, “Defining Deviancy Down”, in which he confronted the problems of crime and social disintegration that were increasingly prevalent in urban America in the previous decades.

According to Moynihan, society has always been willing to tolerate a certain level of crime, provided that it can be controlled and maintained at that level. A community’s tolerance of crime, or deviance, was measured by the apparatus it put in place to achieve such control, including the police, courts, and prisons. What society would tolerate was a function of public policy.

However, the situation could arise where the level of crime exceeds the resources of the system. In this circumstance, Moynihan wrote, a community would face a choice: It could “afford to recognize” the number of criminals in its midst and increase the law enforcement apparatus necessary to control them, or it could simply and simply “choose not to notice. behavior that would otherwise be controlled, frowned upon or even punished.”

As an example of the latter, Moynihan referenced New York’s approach to the mentally ill and, by extension, the homeless. In 1955, mental patients numbered over 90,000 in New York State alone (about ten times the current number), overwhelming its capacity to house them.

Five years later, Moynihan, as part of a committee established by President Kennedy to address the problem, recommended the release of most patients, along with funding for two thousand community mental health centers to help patients transition back into society. Needless to say, almost all patients were released, but only a fraction of these centers were ever funded, let alone built.

The result was inevitable. By failing to provide the necessary structure to treat the mentally ill, New York, as a policy, has chosen to “ignore” the resulting behavioral consequences. Health was neither controlled nor frowned upon.

With Mr. Penny’s trial, Moynihan’s thesis reached a certain flashpoint, unfolding in plain sight in a New York courtroom. Conformable testimony before the trialShortly before he was killed, Neely walked through the subway, coming within inches of passengers.

As he did so, he shouted, “someone is going to die today,” “I want to hurt people.” More recently, at the trial, a witness he confessed that Neely raised his fists and shouted that if he was not given food and water he would “start grabbing people” and that “(he) was going to start attacking” and another quote Neely to say, “I’ll kill a bastard.”

What stands out about the Penny case is not whether he is innocent or guilty, on which I offer no opinion, but how many commentators have suggested that Neely’s behavior was unexceptional and just part of the everyday fabric of New York life . For example, a writer for the New York Times argument that Neely was just “making people uncomfortable.”

Another Times writer, Elizabeth Spiers, scoffed at the idea that anyone could be afraid in such a situation, tweeting: “I’ve ridden the subway safely for 23 years and my child has never been threatened by a half-naked lunatic, but those imaginary monsters in your head are treatable with therapy.”

More significantly, these sentiments have moved from the opinion pages to the Penny trial itself. prosecutor Dafna Yoran expressly recognized how unremarkable it is for New Yorkers to encounter individuals like Jordan Neely, suggesting, according to a reportthat “Neely’s erratic behavior is something that New Yorkers can witness daily.” It added: “As New Yorkers, we train ourselves not to engage. Do not make eye contact. Pretend people like Jordan Neely aren’t there.”

Although intended as a rebuke, Yoran’s argument was an unwitting acknowledgment that Moynihan’s thesis remains tenable thirty years later. She merely replaced “Choose not to notice” with “pretend it’s not there” while chastising New Yorkers for adopting as private policy what the city long ago adopted as public policy.

Tuesday’s election suggests that, as a whole, the country is losing patience with such policies. Even California showed a change of heart when it overwhelmingly passed Proposition 36, which largely reversed the decriminalization of shoplifting. He wonders if New Yorkers will ever lose their patience.