JUDGING CRIMES

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.