Cowboys & Aliens

Well it’s no Iron Man, but neither is it The Fantastic Four. It’s a serviceable summer flick, in other words.

It also happens to be (loosely) based on the 2006 graphic novel by Scott Michael Rosenberg, Fred Van Lente and Andrew Foley.

Anyway, there are a few legal issues to be discussed here, so take a look inside.

I. U.S. Marshals

There are a few mentions of the local sheriff sending off two of the characters to the federal marshal in a nearby city. The United States Marshals Service is actually a rather interesting hybrid sort of entity. It is technically an executive agency, part of the Department of Justice, but it is effectively the enforcement arm of the federal court system. The current USMS is only a few decades old, but federal marshals have existed since the passage of the Judiciary Act of 1789. Especially during the nineteenth century in the American West, US marshals were effectively the only federal law enforcement officers around. So sending a criminal to the federal marshal was not an unusual move.

More to the point, Arizona did not actually become a state until 1912, so in 1873, when the movie is set, there was no state government, but there was a territorial government organized under the Arizona Organic Act.  The territorial government had its own laws and court system (though there were also federal district courts).

This is significant, because the federal government does not have “general police power,” i.e. the plenary authority to regulate behavior and punish crimes, in states or organized territories. Murder, for example, is not something the federal government can punish as such. It has to be linked to some particular aspect of federal jurisdiction, e.g. the murder of a federal official or murder on federal property. If the criminals had committed a federal crime (e.g. stealing from the mail) then it would be reasonable to send them to the marshals.

States and organized territories can empower federal marshals to act as state law enforcement officers.  See, e.g., N.Y. Crim. Proc. Law § 2.15.  At the time the movie is set the Arizona Territory was governed by the Howell Code, a statutory code based on the laws of New York and California.  However, there does not seem to have been such a provision in the laws of the Arizona Territory at that time.  So we’ll have to presume that the criminals were wanted for some federal crime.

II. Prosecutorial Discretion

The other thing is Percy Dolarhyde’s expectation that the sheriff would let him go when his dad showed up. This had apparently happened before. Woodrow Dolarhyde was the only real game in town as far as jobs and employment went, so he wielded a significant degree of influence over local politics, it would seem, to the point of being able to get his son out of jail for the asking.

This is, unfortunately, not that implausible. Corrupt? Certainly. But deciding whether or not to prosecute a given suspect falls within what is called “prosecutorial discretion,” itself a form of “enforcement discretion“. The basic idea is that law enforcement officials can decide who they are going to charge and what sorts of crimes they are going to go after. This may sound like it’s an invitation for corruption and civil rights abuses, and it certainly can be. “Driving while black” is a “crime” because of enforcement discretion. But it’s also an important part of the law enforcement function, so the courts have resisted attempts to curtail it. It is simply undeniable that there are far too many crimes committed and criminals on the loose for any law enforcement agency to get all of them with not just finite, but frequently all-too-limited resources. So if a prosecutor thinks that a given defendant is guilty but recognizes that getting the evidence to get a conviction would be expensive, he may decide to just let it drop. Similarly, police departments frequently focus their efforts where they expect to be the most “effective,” a term which is usually decided on political considerations as much as anything else. This power also permits prosecutors to offer plea bargains to defendants for turning state’s evidence. So while there are indeed problems with enforcement discretion, it seems too essential a part of the law enforcement process to get rid of.

This discretion is also what permits Woodrow Dolarhyde to get his kid out of jail. He’s the richest guy in town, and like it or not, that gives him a certain amount of political power, including the ability to put pressure on the sheriff to ignore Percy’s minor offenses. However, when those offenses include shooting a deputy, Dolarhyde finds that his influence only goes so far. Whether or not that is plausible significantly depends on the character of the sheriff. The only reason for sticking to his guns was out of a dedication to principle, something many local law enforcement officials lacked in that part of the country at that time.

This is another reason US marshals were so important in the American West: they were largely viewed, and rightly so, as less subject to corruption than their local counterparts. Which is still true, for what it’s worth. To the extent that American politics are corrupt, as in “envelopes of cash,” nepotism, and kickbacks corrupt, not “influence peddling and campaign contributions,” that corruption is mostly limited to the local and state levels. Federal law enforcement officials have, all things considered, an incredible track record for integrity, at least by historical standards.

III. Conclusion

The movie was kind of a puff piece, but the plot touches on legal history at a few points and does so reasonably well. Go see it.