Title: The Death Penalty in Post-Independence Ireland
Abstract: Abstract The history of capital punishment in post-Independence Ireland has received scant scholarly attention. This essay is an attempt to set out what can be learned about the executed persons, the executioners, and the politicians whose inaction (not reforming the law) and actions (deciding against clemency) brought the two former groups together. The death penalty was deployed strategically against IRA members during the early 1940s as part of a package of legal measures designed to crush subversive activity, but more usually its targets were murderers whose acts had no wider ramifications. One notable aspect of the Irish arrangements was that when a prisoner was to be taken to the gallows an English hangman was always contracted to arrange the ‘drop’. Reflecting popular antipathy towards the practice the Irish state was unable to find a willing executioner within its borders. Acknowledgments For their advice and practical assistance we are grateful to Tom Behan, Tim Carey, Tim Pat Coogan, Steve Fielding, Victor Laing, Stewart McLaughlin, Grainne O'Meara and Sean Reynolds. Notes 1 Letter from J.H. Blackwood Murphy to Douglas Hyde, 23 Feb. 1949, National Archives of Ireland (NAI), DT S7788B. 2B. Farrell, ‘The Drafting of the Free State Constitution: I’, 5 The Irish Jurist (1970), 117. See also B. Farrell, ‘The Drafting of the Free State Constitution: II’, 5 The Irish Jurist (1970), 343–356. On the events surrounding the formation of the Irish Free State, see J. Regan, The Irish Counter - Revolution, 1921–1936: Treatyite Politics and Settlement in Independent Ireland, Dublin, 1999. 3For details of the membership of these groups (or ‘factions’) see G. O'Brien, ‘Capital Punishment in Ireland’, in N.M. Dawson, ed., Reflections on Law and History, Dublin, 2006, 225–226. 4B. Farrell, ‘The Drafting of the Free State Constitution: III’, 6 The Irish Jurist (1971), 123. 5J.A. Gaughan, ed., The Memoirs of Senator James G. Douglas (1887–1954): Concerned Citizen, Dublin, 1998, 86–87. 6B. Farrell, ‘The Drafting of the Free State Constitution: IV’, 6 The Irish Jurist (1971), 359. 7Article 50 of the 1922 Constitution specified that, after the expiration of a period of eight years from the date of the coming into operation of the Constitution, any amendment would have to have been submitted to a referendum of the people and could no longer be made by way of ordinary legislation. 8Department of Justice, Memorandum for Government, 12 April 1956, NAI, DT S7788B. 9Ibid. For a review of the role and relevance of the death penalty in Britain during the first half of the twentieth century see Royal Commission on Capital Punishment (1949–53), Report [Cmd. 8932], London, 1953. 10The abolitionist argument had been made occasionally in the pre-Independence period, but cautiously and without effect. According to W.E. Vaughan (Murder Trials in Ireland, 1836–1914, Dublin, 2009, 317): ‘When abolitionists did appear they were not only small in numbers, but diffident. In 1841 a memorial from the Hibernian Anti-Punishment By Death Society made it clear that they did not expect much notice to be taken of their efforts … Irish abolitionists were not prominent among the witnesses who gave evidence to the 1866 royal commission’. See also J. Haughton, ‘On Death Punishments’, A Paper Read before the Dublin Statistical Society, Dublin, 1850, 3–11. 11O'Brien, ‘Capital Punishment’, 226–227. 12Executions by Provisional and Irish Free State Governments, 1922–24, 19 Aug. 1948, NAI, DT S1884. See also C. Campbell, Emergency Law in Ireland, 1918–1925, Oxford, 1994, 361–371. 13E. O'Halpin, Defending Ireland: The Irish State and its Enemies since 1922, Oxford, 1999, 34. 14M. Hopkinson, Green against Green: The Irish Civil War, Dublin, 1992, 263. 15O'Brien, ‘Capital Punishment’, 226. 17 Irish Independent, 30 Nov. 1923, 6. For details on the Dublin Criminal Commission see Irish Law Times and Solicitors' Journal, 27 Oct. 1923, 264 and Irish Law Times and Solicitors' Journal, 1 Dec. 1923, 296–297. 16T. Garvin, 1922: The Birth of Irish Democracy, Dublin, 1988, 166. 18See O'Brien, ‘Capital Punishment’, 223–258. 19I. O'Donnell, ‘Killing in Ireland at the Turn of the Centuries: Contexts, Consequences and Civilizing Processes’, 37 Irish Economic and Social History (2010), 53–74. 20For information on the location of the clemency power pre-1937 see, Extract from Instructions Passed under the Royal Sign Manual and Signet to the Governor-General of the Irish Free State, 6 Dec. 1922, NAI DT, S7788A. See also Death Sentences Procedure File, 20 May 1935, NAI, DT S7788A. 21Emergency provisions introduced for a specific purpose during a particular crisis can become part of the routine apparatus of criminal justice; a process known as ‘normalisation’. See B. Vaughan and S. Kilcommins, Terrorism, Rights and the Rule of Law: Negotiating Justice in Ireland, Cullompton, 2008, 67–96. 22The Earl of Longford and T.P. O'Neill, Eamon De Valera, Boston, 1971, 359; T.P. Coogan, The IRA, London, 1995, 180; J. Maguire, IRA Internments and the Irish Government: Subversives and the State 1939–1962, Dublin, 2008, 24. 23Sixteen executions occurred under the Cumann na nGaedheal government of 1923–32; seventeen under Fianna Fáil, 1932–48; one under the first Interparty Government, 1948–51; and one under Fianna Fáil, 1951–54. 24R. Hood and C. Hoyle, The Death Penalty: A Worldwide Perspective, 4th ed., Oxford, 2008. 25M. Ancel, The Death Penalty in European Countries, Strasbourg, 1962; United Nations, Capital Punishment, New York, 1968. 26Memorandum for Government, 12 April 1956, NAI S7788B. 27Considerations submitted to the Government as to why the Sentence of Death passed on Richard Goss by a Military Court sitting at Collins Barracks in the City of Dublin on the 1st day of August 1941 should not be Carried Out, 2 Aug. 1941, NAI, DT 12540. 28Patrick McGrath, Thomas Green and Maurice O'Neill were shot in Mountjoy Prison. George Plant and Richard Goss were shot in Portlaoise Prison. 29Cited in S. Cronin, Washington's Irish Policy 1916–1986, Dublin, 1987, 103. 30 Irish Times, 27 Oct. 1923, 8. 31Court of Criminal Appeal, No. 16 of 1931, 11 June 1931; See also Attorney General v O'Shea, [1931] IR, 724–725. 32 Attorney General v O'Shea, [1931] IR, 713. 33 Irish Independent, 1 Dec. 1927, 9. 34D. Ferriter, Occasions of Sin: Sex and Society in Modern Ireland, London, 2009, 118. 35The Republic of Ireland Act, 1948 came into force in 1949. 36 Irish Independent, 2 Jan. 1954, 9. See also D. Walsh, Beneath Cannock's Clock, Cork, 2009. 3789 ILTR, 155. 38Memorandum for Government, 27 Feb. 1954, NAI, DT S15641. 39I. O'Donnell, ‘Lethal Violence in Ireland, 1841 to 2003: Famine, Celibacy and Parental Pacification’, 45 British Journal of Criminology (2005), 671–695. 40Fifteen persons sentenced to death were reprieved between 1946 and 1964. In another four cases a death penalty was overturned by the Court of Criminal Appeal and not re-imposed after a retrial. 41 Section 1 of the Criminal Justice Act 1964 restricted the use of the death penalty. 42Eight death sentences were overturned by the Court of Criminal Appeal between 1924 and 1964. These cases are omitted from our analysis. 43 Irish Independent, 6 Aug. 1925, 8. 44Ibid. 45The final female murderer whose death sentence was commuted to life imprisonment was Mary (Mamie) Cadden, the infamous Dublin abortionist, who was convicted in November 1956. 48Death Sentence – Deborah Sullivan, 17 June 1929, NAI, DT S5886. 46This is the median value. It is used in preference to the mean which is distorted by a small number of extreme values. The mean was five years and one month. 47Return of persons sentenced to death from 1st April 1922 to 17th June 1937, NAI, DT S7788A. 49Death sentences and commutations ledger, Mountjoy Prison Museum. 50 Irish Independent, 4 April 1923, 5. 51Return of persons, NAI, DT S7788A. 52Ibid. 53Convicts serving life sentences (… having been originally sentenced to death) from 1888 to 1944 – with dates of release, NAI, DT S7788A. 54As the spread of times served was narrower, the mean value for men (seven years and two months) was close to the median. These calculations are based on twenty-eight of the thirty-four reprieved men for whom data about time served could be obtained. See Names of persons who were sentenced to death since 1925 and whose sentences were commuted to life imprisonment, undated, Mountjoy Prison Museum. 55The median was 138 days; the mean was 226 days. 56The median time interval was thirty-four days; the range was twenty-one days (William Downes) to 117 days (Bernard Kirwan). The mean was 40 days. Kirwan's case was the first where an appeal on a capital charge was taken from the Court of Criminal Appeal to the Supreme Court. See Irish Times, 2 June 1943, 1, and [1943] IR 279. 57The median interval between crime and conviction was thirteen days (range: 4 to 761; mean: 218). 58The median interval between sentencing and execution was twelve days (range: 7 to 53; mean: 18). 59Appeals were permitted from the Special Criminal Court but no such right existed for those convicted by the Military Court. 60See M. Moroney, George Plant and the Rule of Law: The Devereux Affair 1940–42, Tipperary, 1989, and Department of Justice, Memorandum, 7 Nov. 1945, NAI, DT S12741. 61See Coogan, IRA, 158. Ironically, on 30 June 1940 Plant had applied (unsuccessfully) for a commission in the Defence Forces, suggesting that his background in the IRA rendered him ‘reasonably useful in charge of green troops who will not give their best under orthodox military discipline’. Letter from George Plant to Frank Aiken, 3 June 1940, Military Archives, Cathal Brugha Barracks, G2/3292. 62Department of Justice, Memorandum for Government, 12 April 1956, NAI, DT S7788B. 63For material relating to British hangmen in pre-Independence Ireland see B.J. Bailey, Hangmen of England, London, 1989; H. Bleakley, The Hangmen of England, London, 1929; S. Fielding, The Executioner's Bible, London, 2008; Vaughan, Murder Trials in Ireland. 64For an overview of executioners and executions in an English context, see S. McLaughlin, Execution Suite: A History of the Gallows at Wandsworth Prison 1878–1993, London, 2004; and S. McLaughlin, Britain's Last Executioner: The Life of Harry B. Allen, London, 2007. 67Letter from W.C. Hale to Governor of Chelmsford Prison, 13 July 1910, National Archives United Kingdom (NAUK), HO144/22510. 65 Irish Times, 30 Nov. 1923, 7. 66A. Pierrepoint, Executioner Pierrepoint: An Autobiography, London, 2005, 101. 68S. Fielding, Pierrepoint: A Family of Executioners, London, 2008, 96–98. 69Pierrepoint, Executioner, 102. 70Executioners were sometimes euphemistically described as ‘operators’ in official correspondence. See, for example, letter from Department of Justice to J.A. Belton, 1 Aug. 1940, NAI, DFA 202/950. 71 Daily Mail, 22 Sept. 1932, NAUK, HO 144/22510. 72 Daily Express, 21 Sept. 1932, NAUK, HO 144/22510. 74Letter from John Ellis to Prison Commission, NAUK, HO 351/135; See also O'Brien, ‘Capital Punishment’, 224. 73Letter from E. Blackwell to Horwood, 26 July 1922, NAUK, MEPO 38/157. 75He retired in 1923 and committed suicide by cutting his throat in 1932. 76Letter from Thomas Pierrepoint to Governor of Mountjoy Prison, 23 July 1931, Mountjoy Prison Museum. 77Letter from Thomas Pierrepoint to Governor of Mountjoy Prison, 20 Nov. 1923, NAI, DJUS 2007/56/1. 78Letter from J.A. Belton to Department of External Affairs, 22 Nov. 1944, NAI, DFA 202/950. 81Letter from Thomas Pierrepoint to Governor of Mountjoy Prison, 3 Dec. 1923, NAI, DJUS 2007/56/1. 79Pierrepoint, Executioner, 104. 80Ibid. 82Pierrepoint, Executioner, 111. 83 Irish Independent, 26 April 1929, 6. 84 Irish Post, 26 July 2006. 89T. Carey, Mountjoy: The Story of a Prison, Cork, 2000, 210–211. 85 Irish Times, 25 Oct. 1948, cited in O'Brien, ‘Capital Punishment’, 241; See also Seanad Debates, vol.46, cols.184–92 (30 May 1956). 86Letter from Henry R. Chillingworth to Douglas Hyde, 15 Nov. 1938, NAI, PRES 1124. 87Department of Justice, Memorandum for Government, 12 April 1956, NAI, DT S7788B. 88On one occasion a Londoner of Irish parentage volunteered his services as a hangman. He felt that he would be suitable for the job given that he had ‘attended numerous executions’ while stationed at Crete with the Royal Navy. Letter from T. Delury to Secretary, High Commissioner, Irish Free State, 26 Nov. 1932, NAI, DFA 44/30. 90This was the month before James Lehman was hanged. The Mountjoy Prison Registry of Deaths indicates that Johnston received a fee of £20 for his part in Lehman's execution. 91Ibid. 92Letter from J.A. Belton to Department of External Affairs, 22 Nov. 1944, NAI, DFA 202/950. 94Carey, Mountjoy, 210–211. 96Pierrepoint, Executioner, 162–163. 93Pierrepoint, Executioner, 161. 95The surname is variously spelled ‘Johnston’, ‘Johnson’ and ‘Johnstone’. 97Ibid., 163. 98D83222, I Did Penal Servitude, Dublin, 1946, 100. 99Ibid., 100–101. It appears that Mahon-Smith's description of the execution equipment was outdated and that wrist straps were used instead of a body belt, the latter device having fallen into desuetude with the regular employment of assistant executioners (Stewart McLaughlin, personal communication, 3 May 2011). 100 Irish Independent, 26 April 1929, 6. 101Letter from Liam O h-Aodha, Adjutant General, to Commandant Michael McHugh, 5 Sept. 1940, NAI, DT S12048-A. 102Ibid. 103United States War Department, Execution of Death Sentences, undated, NAUK, WO 322/0624. 107Ibid. 108Ibid. 104Procedures for military executions by shooting, 10 Sept. 1941, NAUK, WO 322/0624. 105Ibid. 106Ibid. 109Ibid. 110The Execution of Sentences of Death (Army) Regulations, 1956. 111Ministry of Defence, March 1980, The Provost Manual, s.7. 112Certificate of the Surgeon, 6 Sept. 1940, NAI, DT S12048A (for executions of McGrath and Green). 116Seanad Debates, vol.24, col.1900–02 (26 June 1940) cited in Ó Longaigh, Emergency Law, 249–250. 113F.F. Davis, The History and Development of the Special Criminal Court, Dublin, 2007. 114S. Ó Longaigh, Emergency Law in Independent Ireland, 1922–1948, Dublin, 2006, 248. 115Ibid. 117Numerous offences were listed in the schedule including: treason; possession of documents prejudicial to public safety or the integrity the state; damage to equipment belonging to the Defence Forces; murder; resisting arrest; unlawful imprisonment; causing explosions; possessing explosive substances, firearms or ammunition; and attempting or conspiring to commit any of the foregoing. 118Emergency Powers (No.41) Order, 1940, Statutory Rules and Orders, 1940, no.237. 119Emergency Powers (Amendment) (No.2) Act, 1940, s.3. 120Ó Longaigh, Emergency Law, 249. 121Emergency Powers (No.41) Order, 1940, s.10. 122Ó Longaigh, Emergency Law, 252. 123Trials by Military Courts under Emergency Powers (No.41) Order, 1940, 16 Aug. 1940, NAI, DT S11908. 124If IRA men were not executed quickly they tended to be released quickly, emphasising that the threat they posed was very context-dependent. 125O'Halpin, Defending Ireland, 248. 126For the commutation of death sentences post-1937 see article 13.6 of Bunreacht Na hÉireann. See also Department of Taoiseach Memorandum, 29 Dec. 1938, NAI, DT S7788A. 127Ibid. 128Letter from unnamed correspondent to Mr. Crowley, 8 July 1940, NAI, DT S11974. 129Letter from Lorcán Ó Brádaigh to An Taoiseach, 6 July 1940, NAI, DT S11974. 130Letter from Patrick Brady to Eamon De Valera, 3 July 1940, NAI, DT S11974. 131Letter from Sean MacCárthaigh to Eamon De Valera, 3 July 1940, NAI, DT S11974. 135Letter from Maude Gonne to Eamon De Valera, 8 July 1940, NAI, DT S11974. Major John MacBride, father of Sean and husband to Maude Gonne, was executed in 1916 for his part in that year's Rising. 132U. MacEoin, ed., Survivors, Dublin, 1980, 124. 133[1941] IR 83. 134MacEoin, Survivors, 124. 136Letter from Patrick Cashman to Eamon De Valera, 6 July 1940, NAI, DT S11974. 137Letter from Patrick Cashman to Eamon De Valera, 11 July 1940, NAI, DT S11974. 138Letter from Michael P. Boland to Eamon De Valera, 3 July 1940, NAI, DT S11974. 139Letter from Ted O'Sullivan to Eamon De Valera, 3 July 1940, NAI, DT S11974. 140Letter from G.S. Baker to Eamon De Valera, 4 July 1940, NAI, DT S11974. 141Telegram from John Quinn and Eamon Donnelly to Douglas Hyde, Aug. 1941, NAI, PRES/1/2030. 142Letter from An Rúnaidhe, Fianna Fáil Comhairle Ceanntar, to An Taoiseach, 2 July 1940, NAI, DT S11974. 144M. Moynihan, ed., Speeches and Statements by Eamon De Valera 1917–73, Dublin, 1980, 433–434. 143J. Bowyer Bell, The Secret Army: The IRA 1916–1919, Dublin, 1990, 171. 145Bowyer Bell, Secret Army, 171. 146See Attorney-General v Thomas Green (alias Francis Harte) and Patrick McGrath, Statement of Offence, 16 Aug. 1940, NAI, DT, S12048A. 147Ibid. 148 Irish Press, 21 Aug. 1940, 7. 149 Attorney-General v Thomas Green (alias Francis Harte) and Patrick McGrath, Record of Proceedings, 20 Aug. 1940, NAI, DT S12048A. 150 Attorney-General v Thomas Green (alias Francis Harte) and Patrick McGrath, Proceedings of Court of Inquiry, 6 Sept. 1940, NAI, DT S12048A. 151Letter from John J. Sampson to Eamon De Valera, 21 Aug. 1940, NAI, DT S12048B. McGrath's ascribed status as ‘the first casualty’ in the War of Independence appears to be mere conjecture. 152Letter from Josephine McGrath to Eamon De Valera, 21 Aug. 1940, NAI, DT S12048B. 153Letter from T. Maguire to Eamon De Valera, 31 Aug. 1940, NAI, DT S12048B. 154Letter from Leo and Joey Hourigan to Miss Gleeson, 20 Aug. 1940, NAI, DT S12048B. 155Shooting at 98A, Rathgar Road, Resume of Case and Court Proceedings, 20 Aug. 1940, NAI, DT S12048A. 156Ibid. 161Cited in Ó Longaigh, Emergency Law, 257. 157Letter from T. Maguire to Eamon De Valera, 31 Aug. 1940, NAI DT S12048B. 158Shooting at 98A, Rathgar Road. 159Ibid. Army files reveal a little more detail, giving his address as ‘Castletown, Dundalk’. On a ‘History Sheet’ no information is noted other than that directly available to the observer, namely colour of hair (sandy), eyes (grey) and complexion (fresh). Green refused to disclose his home address, marital status, next of kin or occupation and his height and weight ‘could not be taken’ suggesting a less than cooperative prisoner. Military Archives, Cathal Brugha Barracks, G2/2723. 160Department of Justice, Memorandum, 4 Dec, 1944, NAI, DT S13567. 162There is no entry in the Mountjoy Prison Registry of Deaths for the three IRA men who were shot there in the early 1940s (McGrath, Green and O'Neill). However, they were buried beside their comrade Charles Kerins and the governor added a diagram to Kerins's entry to show the location of the graves. In 1948 the bodies of all four were exhumed and given to their families for re-interment. 163Ó Longaigh, Emergency Law, 245. 164Extract from Weekly Miscellaneous Report – DMD, Week Ended 16 Sept. 1940, Military Archives, Cathal Brugha Barracks, G2/X/0452. 165Trials by Military Courts under Emergency Powers (No.41) Order, 1940, 16 Aug. 1940, NAI, DT S11908. 166Dáil Debates, vol.101, col.1132 (29 May 1946). 167Shan Mohangi was the last person sentenced to death before the Criminal Justice Act, 1964 came into force, but his conviction was overturned by the Court of Criminal Appeal. See The People (Attorney General) v Shan Mohangi, CCA, Unreported, 14 May 1964. 168 The People (Attorney General) v James Kelly, CCA No.33 of 1962, Unreported, 14 May 1964. 169I. O'Donnell, ‘Violence and Social Change in the Republic of Ireland’, 32 International Journal of the Sociology of Law (2005), 102–117. 170Noel Callan and Michael McHugh were the last persons to be sentenced to death under the 1964 legislation. They killed Garda Sergeant Paddy Morrissey on 27 June 1985 and their sentences were commuted by the president, Patrick Hillery, to forty years' imprisonment. 171Request from the Garda (Republic of Ireland police) to the Metropolitan Police Special Branch (instead of through Government channels) for the services of an executioner, 1 Jan. 1976–31 Dec. 1976, NAUK, HO 325/84. 172Criminal Justice Act, 1990, s.4. 173In Taiwan, support for the death penalty stood at 83 per cent, compared with 68 per cent in the USA, 50 per cent in the UK and 17 per cent in Ireland. Only in Norway (16 per cent) and Iceland (13 per cent) was there a lower level of public support. J. Unnever, ‘Global Support for the Death Penalty’, 12 Punishment and Society (2010), 473–474. 174Hood and Hoyle, The Death Penalty, 31–32. For an account of why state killing persists in the USA, see D. Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition, New York, 2010. On Japan, see D. Johnson, ‘Where the State Kills in Secret: Capital Punishment in Japan’, 8 Punishment and Society (2006), 251–285. 175The turnout was 35 per cent with almost two-thirds (62 per cent) voting in favour of the proposed amendment.