“On the Other Hand the Accused Is a Woman...”: Women and the Death Penalty in Post-Independence Ireland

“On the other hand the accused is a woman...”: Women and the Death Penalty in Post-Independence Ireland LYNSEY BLACK Hannah Flynn was sentenced to death on February 27, 1924. She had been convicted of the murder of Margaret O’Sullivan, her former employer. Hannah worked for Margaret and her husband Daniel as a domestic serv- ant, an arrangement that ended with bad feeling on both sides when Hannah was dismissed. On Easter Sunday, April 1, 1923, while Daniel was at church, Hannah returned to her former place of work, and killed 50-year-old Margaret with a hatchet. At her trial, the jury strongly recom- mended her to mercy, and sentence of death was subsequently commuted to penal servitude for life. Hannah spent almost two decades in Mountjoy Prison in Dublin, from where she was conditionally released on October 23, 1942 to the Good Shepherd Magdalen Laundry in Limerick. Although there is no precise date available for Hannah’s eventual release from there, it is known that “a considerable time later,” and at a very advanced age, she was released from the laundry to a hospital, where she died. The case of Hannah Flynn, and the use of the Good Shepherd Laundry, represents an explicitly gendered example of the death penalty regime in Ireland Lynsey Black is an Irish Research Council Government of Ireland Postdoctoral Fellow at the Sutherland School of Law, University College Dublin <lynsey. [email protected]>. She thanks Ivana Bacik, Donal Coffey, Ian O’Donnell, and Lizzie Seal for providing comment and feedback on earlier drafts of the article, as well as the anonymous reviewers for Law and History Review who gave gen- erous and invaluable guidance on how to improve the article. She also thanks the Irish Legal History Society for a bursary received while conducting the research. Law and History Review February 2018, Vol. 36, No. 1 © the American Society for Legal History, Inc. 2017 doi:10.1017/S0738248017000542 Downloaded from https://www.cambridge.org/core. Maynooth University, on 14 Jan 2020 at 14:24:12, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248017000542 140 Law and History Review, February 2018 following Independence in 1922, particularly the double-edged sword of mercy as it was experienced by condemned women.1 This article examines the cases of women sentenced to death in Ireland post-Independence,2 and argues that although women were typically the objects of formal mercy through commutation of sentence, this mercy can- not be read uncritically. Throughout, the term “mercy” is used to refer to executive clemency, demonstrated through the formal “prerogative of mercy”; however, it is acknowledged that the concept of mercy has itself been deconstructed in other accounts.3 Incorporating the concepts of chivalry and paternalism, the article argues that mercy extended to women was often an indicator of patriarchal gender relations under which women were implicitly regarded as a class apart. Mercy was applied according to a framework of chivalry: the idea that women in the criminal justice system are extended leniency because of their gender. This theory has been subjected to subsequent feminist analyses that have reconceptualized it as an exclusionary, rather than a benign, tactic.4 Mercy was also intertwined with paternalism, which posits the position of women as inferior relative to men, akin to the parent/child relationship.5 This paternalism worked to justify 1. See National Archives of Ireland (hereinafter NAI) Central Criminal Court Kerry 1923 1C-79-22; Department of Justice 18/2769A; Report of the Inter-Departmental Committee to Establish the Facts of State Involvement with the Magdalen Laundries, the “McAleese Report” (Dublin 2013). http://www.justice.ie/en/JELR/Pages/MagdalenRpt2013. Accessed 29 November 2017. 2. Ireland gained Independence from the United Kingdom in 1922. After 2 years of fight- ing during the War of Independence, from 1919 until 1921, during which Irish republican forces had fought British forces on Irish soil, the Anglo–Irish Treaty was signed in London in 1921. This treaty provided for the partition of Ireland, into the six counties of Northern Ireland and the twenty-six counties of the Irish Free State. Ireland became a republic in 1949, following the Republic of Ireland Act 1948. Throughout the article, references to ‘Ireland’ refer to the twenty-six counties that constituted, first the Irish Free State, and then the Republic of Ireland. 3. For example, Austin Sarat has argued that extension of commutation to a class of per- sons does not meet the formal definition of mercy, which must be an individualized function, see, Austin Sarat, Mercy on Trial: What it Means to Stop an Execution (Princeton: Princeton University Press, 2005). This argument could be made for the extension of reprieve to women as a “class” of condemned. In an Irish context, Ian O’Donnell has also categorized decisions on executive clemency according to whether they display “mercy” or “justice,” see Ian O’Donnell, Justice, Mercy and Caprice: Clemency and the Death Penalty in Ireland (Oxford: Oxford University Press, 2017). 4. Ania Wilczynski, “Mad or Bad? Child-killers, Gender and the Courts,” British Journal of Criminology 37 (1997): 419–36; Steven F. Shatz and Naomi R. Shatz, “Chivalry is not Dead,” Berkeley Journal of Gender, Law and Justice 27 (2012): 64–112. 5. Elizabeth F. Moulds, “Chivalry and Paternalism: Disparities of Treatment in the Criminal Justice System,” Western Political Quarterly 31 (1978): 416–30. Downloaded from https://www.cambridge.org/core. Maynooth University, on 14 Jan 2020 at 14:24:12, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248017000542 “On the other hand the accused is a woman...” 141 commutation of sentence for most women as well as lengthier periods of confinement in semipenal, religious sites. The article offers original empirical findings, and is the first research to focus on the treatment of women sentenced to death in Ireland. There is a small but emerging body of literature on capital punishment in Independent Ireland;6 however, the existing literature does not examine gender in detail. This may be the effect of an Irish historiography that actively excludes women through its focus on political, revolutionary history, and accounts of the actions of male figures.7 The article, therefore, explores the gendered dimensions of capital punishment through the forgotten cases of condemned women, and demonstrates that comparison of the numbers of women executed versus the number of men executed reveals a partial finding only.8 Further, the article examines the role of religious sites of confinement in Ireland for reprieved women, particularly in the context of recent Irish work on the post-Independence history of “coercive confinement” for vulner- able populations, and the role of Magdalen laundries as a form of gendered control.9 The past two decades has seen a period of uncovering related to 6. Gerard O’Brien, “Capital Punishment in Ireland, 1922–1964,” in Reflections on Law and History, ed. Norma M. Dawson (Dublin: Four Courts Press, 2006), 223–57; David M. Doyle and Ian O’Donnell, “The Death Penalty in Post-Independence Ireland,” Journal of Legal History 33 (2012): 65–91; Ian O’Donnell and David M. Doyle, “A Family Affair? English Hangmen and a Dublin Jail,” New Hibernia Review 18 (2014): 101–18. Irish historiography has traditionally been dominated by accounts of the death penalty as a tool of British oppression, or as a response to political or subversive violence in Ireland, or to violence by Irish republicans. See, for example, David Matthew Doyle, “Republicans, Martyrology, and the Death Penalty in Britain and Ireland, 1939–1990,” Journal of British Studies 54 (2015): 703–22. Although this work has contributed much to understanding issues such as the changing British responses to republican violence, or the project of Irish nation building post-1922, it has meant that accounts that endeavor to embrace other perspectives are less common. As noted by Doyle and O’Donnell, in “The Death Penalty in Post-Independence Ireland,” the majority of murders committed following Independence could not be characterized as political. This preoccupation with the “political” in Irish history has been noted as one factor that has prevented the development of women’s history more fully, see Mary McAuliffe, “Irish Histories: Gender, Women and Sexualities,” in Palgrave Advances in Irish History, ed. Katherine O’Donnell and Mary McAuliffe, (London: Palgrave, 2009), 191–212. 7. McAuliffe, “Irish Histories: Gender, Women, and Sexualities”. 8. Anette Ballinger cautions against a simplistic reading of the figures. In her own research, although women were overwhelming reprieved from sentence of death, women who had been convicted of the murder of an adult were less likely to be reprieved than men. See Anette Ballinger Dead Woman Walking: Executed Women in England and Wales, 1900–1955 (Aldershot: Ashgate/Dartmouth, 2000). 9. See Eoin O’Sullivan and Ian O’Donnell, “Coercive Confinement in the Republic of Ireland,” Punishment and Society 9 (2007): 27–48. This article offers a broad overview of the trends and figures for coercive confinement in the post-independence period, including Downloaded from https://www.cambridge.org/core. Maynooth University, on 14 Jan 2020 at 14:24:12, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0738248017000542 142 Law and History Review, February 2018 this network of semipenal sites, and the exposure of practices of cruelty and deprivation within these institutions. This period has witnessed the recovery of stories of institutional abuse and exploitation, in cultural representations,10 as well as in academic and, sometimes reluctantly, official responses.11 Finally, although there is a substantial historiography on infanticide in Ireland,12 little has been written about women who killed adults.

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