Loos­en­ing the noose

Ire­land and the death penalty

The Irish Times - Friday - The Ticket - - NEWS - NI­COLA CARR Ni­cola Carr is as­so­ciate pro­fes­sor in crim­i­nol­ogy at Uni­ver­sity of Not­ting­ham

JUS­TICE,MERCYANDCAPRICE: CLEMENCYANDTHEDEATHPENALTY INIRELAND IAN O’DON­NELL Ox­ford Uni­ver­sity Press, 336pp, £70

To many, the death penalty may seem like an anachro­nis­tic pun­ish­ment, a relic of a past age that in the process of civil­i­sa­tion has been con­fined to the his­tory books. Some may there­fore be sur­prised to learn that Ire­land’s last link with the death penalty was only sev­ered in 2015, when the last two peo­ple to be sen­tenced to cap­i­tal pun­ish­ment for the mur­der of a mem­ber of An Garda Síochána were re­leased from prison, hav­ing served 30 years fol­low­ing the com­mu­ta­tion of their death sen­tences.

Up un­til the early 1960s the death penalty was a manda­tory sen­tence for mur­der, and un­til 1990 it re­mained as the ul­ti­mate penalty for so-called “cap­i­tal of­fences”, which in­cluded the mur­der of on-duty mem­bers of the Garda or the Prison Ser­vice, or the po­lit­i­cally mo­ti­vated mur­der of for­eign dig­ni­taries on Ir­ish soil.

How­ever, the prac­tice of the State en­act­ing death as a means of pun­ish­ment ef­fec­tively ceased af­ter 1954 when Michael Man­ning, the last per­son to be ex­e­cuted, was hanged in the yard of Moun­tjoy prison. In 2001, the pub­lic voted in a ref­er­en­dum to re­move all ref­er­ences to the death penalty from the Con­sti­tu­tion.

It did so by a ma­jor­ity of 62 per cent, al­though if the turnout was a re­flec­tion (35 per cent), it was not an is­sue on which the pub­lic was par­tic­u­larly ex­er­cised.

In this book, Ian O’Don­nell charts Ire­land’s jour­ney to­wards the grad­ual abo­li­tion of the death penalty. The cen­tral fo­cus is on the prac­tice of clemency, that is, where a court im­posed a death penalty but the State in­ter­vened to pre­vent its en­act­ment. From 1923 to 1990, in the pe­riod fol­low­ing the end of the Civil War to the re­moval of the death penalty from the statute books, 98 men and women were sen­tenced to death whose con­vic­tions were up­held on ap­peal, but in only 35 of these cases the ul­ti­mate penalty was en­acted. In other words, al­most two-thirds of those whom the courts had sen­tenced to death had their sen­tence com­muted. Why was this the case, and what does it re­veal about at­ti­tudes to crime and jus­tice, and so­ci­ety and cul­ture?

Ex­e­cu­tion­ers

O’Don­nell notes that his in­ter­est was piqued on this topic, when he came across a let­ter in the Na­tional Ar­chives from the ex­e­cu­tioner, Thomas Pier­re­point, com­plain­ing about de­lays in the re­im­burse­ment of his ex­penses, fol­low­ing a fu­tile jour­ney to Dublin from York­shire. Pier­re­point, or his nephew Al­bert, trav­elled from Eng­land through­out the first half of the 20th cen­tury to pro­vide their grim ser­vice, as it proved im­pos­si­ble to re­cruit some­one lo­cally to the task. Pa­trick Ayl­ward, the per­son who Pier­re­point was due to hang in 1923, had had his sen­tence com­muted by the gov­ern­ment at the last minute. Ayl­ward had com­mit­ted a par­tic­u­larly hor­rific mur­der – “roast­ing an in­fant on a fire”, but had his sen­tence com­muted to pe­nal servi­tude for life, fol­low­ing rep­re­sen­ta­tion to the gov­ern­ment from the coad­ju­tor Bishop of Os­sory. In an­other quirk of re­li­gious in­ter­ven­tion, Ayl­ward was sub­se­quently re­leased from prison along with sev­eral other con­victed mur­der­ers, to mark the Eucharis­tic Congress held in Dublin in 1932.

Clemency

In extensive archival re­search, in­clud­ing anal­y­sis of records held in the Na­tional Ar­chives, the Cen­tral Crim­i­nal Courts and closed pris­oner files, O’Don­nell traces the ra­tio­nales be­hind the clemency de­ci­sion-mak­ing process in the cases of those sen­tenced to death, whose sen­tences were com­muted. The de­ci­sion to grant clemency in­volves the in­ter­sec­tion of pol­i­tics in mat­ters of law, and as such pro­vides a unique vantage point from which to ex­plore the func­tion­ing of the State and pre­vail­ing at­ti­tudes to­wards crime, pun­ish­ment and moral­ity.

Once a court passed its sen­tence and any ap­peals had been heard, it was within the Of­fice of the Gover­nor Gen­eral (up un­til 1936) and sub­se­quently the pres­i­dent’s pow­ers to com­mute the death penalty, but they would only ex­er­cise this power on the rec­om­men­da­tion of the gov­ern­ment of the day. What mo­ti­vated the de­ci­sion to rec­om­mend clemency in some cases, but not in others?

O’Don­nell’s care­ful anal­y­sis of these cases sug­gests that the ex­er­cise of clemency was mo­ti­vated by one of three fac­tors – jus­tice, mercy or caprice. When jus­tice was a mo­ti­vat­ing fac­tor, there was an at­tempt to tai­lor the pun­ish­ment to the in­di­vid­ual cir­cum­stances. This in­cluded cases where the law meant that the court’s hands were tied in re­gard to the penalty it could im­pose, for in­stance where the death penalty was manda­tory, as was the case for crimes of in­fan­ti­cide prior to the in­tro­duc­tion of re­form­ing leg­is­la­tion in the late 1940s.

The ex­er­cise of mercy was when the de­served pun­ish­ment was soft­ened out of com­pas­sion for an in­di­vid­ual’s plight. Capri­cious clemency was ex­er­cised when an un­ex­pected turn of events led to a change in di­rec­tion, such as in the case of Pa­trick Hef­fer­nan, who hav­ing been con­victed of the mur­der of a young woman in 1950, was spared the death penalty fol­low­ing a re­ver­sal of the gov­ern­ment’s de­ci­sion that the law should be al­lowed to take its course.

No­tably, this fol­lowed from the at­ten­dance of Cahir Davitt, a judge from the Court of Crim­i­nal Ap­peal, at a gov­ern­ment meet­ing to ar­gue that Hef­fer­nan’s life should be spared, a clear breach of the doc­trine of sep­a­ra­tion of pow­ers. Davitt had no role in Hef­fer­nan’s tri­als and was in a mi­nor­ity on the Court of Crim­i­nal Ap­peal, which had dis­missed his ap­pli­ca­tion to ap­peal. Davitt nonethe­less ar­ranged to meet with the gov­ern­ment to ex­press his views, again, a clear breach of the doc­trine of sep­a­ra­tion of pow­ers.

The ma­jor­ity of clemency cases were mo­ti­vated by jus­tice, in other words, through the gov­ern­ment pro­vid­ing its own cor­rec­tive to leg­isla­tive stric­tures. How­ever, given that the gov­ern­ment was ul­ti­mately re­spon­si­ble for laws and their re­form, this was a cu­ri­ous form of achiev­ing what was just.

Gen­der is a sig­nif­i­cant thread through­out this book. The last woman to be ex­e­cuted by the State was An­nie Walsh, who in 1925 was con­victed of mur­der­ing her hus­band with a hatchet. There­after any woman sen­tenced to death had their sen­tence com­muted. For many, this was be­cause their crime in­volved killing an un­wanted child, an action that of­ten re­flected the mo­ral stric­tures of the time.

How­ever, the de­ci­sion to grant clemency was some­times dou­ble edged. Hav­ing been spared the hang­man’s noose, some were sub­se­quently co­er­cively con­fined for years, in an in­sti­tu­tion such as a Mag­da­lene laun­dry. In analysing the fac­tors that led to the ex­er­cise of clemency and its af­ter­math, O’Don­nell’s extensive re­search sheds light on the ex­er­cise of State power in Ire­land and the po­tent mix of pol­i­tics, chivalry, moral­ity and def­er­ence over time.

PHO­TO­GRAPH: DARA MAC DÓNAILL

For­mer death row pris­on­ers Sunny Ja­cobs and Peter Pringle un­veil the Amnesty In­ter­na­tional an­niver­sary stamp at the GPO in Dublin, en­cour­ag­ing Ir­ish peo­ple to sup­port a let­ter-writ­ing cam­paign to end the death penalty.

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