Justice, Mercy, and Caprice: Clemency and the Death Penalty in Ireland I. O'Donnell. Oxford: Oxford University Press (2017) 336pp. £70.00hb ISBN 9780198798477

It is commonly thought that the more methodical, the more blameworthy a killing is. A State execution epitomises methodical killing and yet capital punishment purports to deliver justice, to do exactly what must be done. How can you do justice, intellectually speaking, to such an awesome subject? Ian O'Donnell's Justice, Mercy, and Caprice: Clemency and the Death Penalty in Ireland (‘JMC’ for short) is an exemplar of methodological rigour and literary verve. JMC is a study of the operation of clemency on death sentences, 1923–90, in what is now the Republic of Ireland. Death by hanging was the mandatory judicial sentence for murder until 1964; from then until 1990 it was mandatory only for murders where the victim had special status, such as being a member of the police force. It was abolished by statute in 1990 and a constitutional amendment in 2001 prevents it returning via statute. Executive clemency was exercised to save someone from the gallows in more than half of the 98 death sentence cases in the 1923–90 period. It was exercised at the discretion of the government (a cabinet of ministers drawn from elected members of parliament, with the support of a majority of the lower house of parliament). Over time, death sentences were carried out in proportionately fewer cases and the last hanging was in 1954, despite the punishment being still available in the 1980s when a number of police officer killings meant that there were qualifying candidates. O'Donnell's exhaustive research pierces the opaque operation of clemency. He delivers on his commitment to grasping the legal, political, and societal setting of clemency in order to understand it. The author has a special knack for zooming in and out when relating historical detail and the book is superbly written. Data are tabulated in numerous ways but the numbers are so small (as mentioned, 98 cases in total) that only tentative observations are apt. O'Donnell notes proportionately more female perpetrators than usual in studies of lethal violence (p.31) but, given the small numbers, there is no real basis for the notion that women in Ireland were more murderous than women elsewhere. JMC's story of death penalty clemency is fascinating and uncomfortable. Juries (made up generally of male Dublin-based property holders, given the rules on juror eligibility) were remarkably fast at returning verdicts in murder trials. In one 1923 case it took just three minutes from the conclusion of evidence for the jury to decide guilt for murder, knowing that a death sentence would follow. The jury could add a rider to its verdict asking for mercy for the defendant. In most cases this did not, on its own, successfully influence the government's decision to grant clemency. O'Donnell says that this was problematic because a jury might not have chosen a murder verdict had it known its asking for mercy would have no purchase; the rider may have been a ‘false balm to troubled consciences’ (p.97). However, a sentencing judge's recommendation as to mercy was typically followed. The guilty party in the 1923 case mentioned above was hanged within a month of his conviction. Indeed, the process of carrying out the hanging itself was rapid: about 9–12 seconds from entering the gallows to death, as reported by Thomas Pierrepoint, an Englishman who travelled to Ireland to carry out hangings and who, like his nephew, Albert Pierrepoint, who later performed the task, stated his admiration for the stoicism of the condemned Irishmen, who ‘generally go quietly’. Clemency was invariably used to spare those who killed babies. In Ireland, prior to 1949, short of insanity, every infanticide was treated as a murder regardless of post-natal disturbances. Clemency operated as a matter of straightforward justice to, in effect, remove infanticide from an overinclusive murder category. O'Donnell describes a milieu that undervalued infant life and which virulently shamed extra-marital pregnancy and childbirth. A number of the infanticide cases exhibit a terrible dilemma where the evil of a child out of wedlock competes with infanticide such that the latter may have seemed a rational choice. O'Donnell plausibly speculates that exercises of clemency were well aware that society shared the blame for infanticide. Only one woman was hanged, in 1925. The rest were spared death in what became an apparently automatic commutation of death sentences for female killers, which included non-infanticide cases and some where the guilty party, O'Donnell says, would certainly have been hanged at the time, if male. Every murder is horrendous but there is a profound bleakness about rural Irish cases. In one case from the 1920s, showing a male perpetrator hanged while a female perpetrator of the same crime was spared, Patrick O'Leary had been the sole inheritor of his father's farm in Cork. Patrick was bludgeoned, hacked to pieces, and his body parts scattered around the farm and adjacent land. Three of his siblings were convicted of his murder with a conspiracy to murder charge against his mother having been dropped. Of the three siblings, the brother was hanged and one sister died in prison before trial. The other sister had her sentence commuted to penal servitude for life – an exercise of clemency as mercy. She was later released to an asylum where she died. Patrick's mother died a few years after his murder; no one attended the funeral. JMC's title reveals its tripartite scheme for classifying clemency. Clemency is the generic term for a decision to stop a particular punishment. Clemency is not an application of law but rather a ‘lawful’ way for law to not take its course at the discretion of the executive branch of government. The particular type of clemency is identified by how it comes about in the decision-making process, which may be one of three categories: justice, mercy, or caprice. The first two are rationales for the decision, the third is not. Caprice was when, out of respect for an intervening or petitioning party, clemency was chosen where it otherwise would not have been (because it was considered not apt in terms of justice or mercy). O'Donnell achieves conceptual clarity in, among other things, explaining and defending a view of mercy as distinct from, and at odds with, justice. Though often mislabelled as mercy, to change a sentence that is considered too harsh is to pursue justice. Mercy is where it is thought that the punishment is deserved and just, and leniency is not merited as such, and yet there is seen to be moral value – a kind of compassion – in avoiding it. This is a deflationary account of mercy. Mercy is a sort of moral showing-off by those with power. Like the book's conceptual schema, Chapter 3, ‘For and against clemency’, excels as a standalone piece, not dependent on the book's 20th-Century Ireland focus, and will be of great value to every researcher of clemency, no matter what their discipline or location. Chapter 3 sets out the objections that punishment theories have to clemency as well as canvassing a range of its merits and demerits, several of which are partly or wholly contingent in that it will depend on the circumstances whether the harm or benefit materialises. O'Donnell's conclusions are appropriately restrained. He approves of clemency's availability and operation if it is confined to justice or mercy, certainly in capital punishment systems, and more ambivalently otherwise. By the chapter's conclusion, O'Donnell tacitly filters out contingent factors in the for-and-against clemency debate. Also in the mix, separate from these factors, is recognition of – though not a defence of – ‘an argument’ that no criminal deserves to die, no matter how bad their crime (p.82). O'Donnell describes how utilitarian (or consequentialist) and retributive accounts of criminal punishment stand against clemency. But we cannot bash clemency with both utilitarianism and retributivism, in their strong forms, at the same time because they both cannot be right. The arguments from retributivism and utilitarianism, I think, can be made to work together in support of Chapter 3's position. The idea is to weaken and combine both theories so that they manage more plausibly to explain the reality of the extant criminal law system than their pure or strong forms can. That is, punishment is applied to reduce future criminal harms but no more punishment may be inflicted on an individual than deserved. This is a hybrid of qualified consequentialism and negative retributivism. It is more or less the criminal law system's best light view of itself. It opens up space for clemency: we do not always have to pursue best consequences (backward-looking clemency is allowed to be decisive on occasion) and punishment that is deserved does not always have to be applied (forward-looking clemency is allowed on occasion). The law must reflect life in all of its messy uncertainty and it is chimerical to think that a workable scheme could be devised to embrace every possible exception. It is important to accept complexity, ambiguity, opacity, imprecision, and occasional incoherence if space is to be left for clemency. When legislators and courts fail to prevent injustice it is acceptable for the executive to act on behalf of the people. Justice without discretion is impoverished. (p.82, references omitted) Law can only roughly ‘reflect life in all of its messy uncertainty’ because to be ‘workable’ law must operate with hard rules, which can be applied predictably and which will be variously over- and under-inclusive next to the messy moral world they try to reflect. This is apparent in the harsh murder convictions detailed in JMC; as noted, a mandatory death sentence for murder was to apply in a case of infanticide that would today qualify as diminished responsibility manslaughter. To be an accomplice to murder – even if playing a peripheral role – also left one facing the death penalty. Law needs a mechanism, on this view, to occasionally not apply, without undermining its claim to be authoritative. Clemency is such a mechanism. For O'Donnell, however, as indicated in the quoted passage above, clemency is a last resort, acceptable ‘[w]hen legislators and courts fail to prevent injustice’ (p.82). He would prefer that the drafting and application of the law better reflect the background morality in the first place. When this is achieved, clemency as justice can fall away, as is seen with reform of infanticide and the gradual abolition of capital punishment, or as might become the case with accomplice liability. After that, a vestigial clemency as mercy may remain. As O'Donnell puts it: ‘[t]o retain a place for clemency is to acknowledge human frailty no matter how close the system approaches legal perfection’ (p.83). But the law can never really get to a place where there is no over- or under-inclusion in the operation of rules. Homicide categories, for instance, remain quite blunt at drawing lines to reflect hazy moral distinctions. More categories could be developed but at the cost of workability. Justice without discretion may be impoverished, as O'Donnell says, but law is a rule-based delivery of justice as distinct from discretionary justice. There is disagreement about what justice requires that cannot be quickly resolved; law, treated as authoritative and purporting to be just, helps us to get on with things. What enables the executive to know ‘[w]hen legislators and courts fail to prevent injustice’ so that clemency is warranted? The argument from defeasibility in support of clemency, as we might call that described in the previous paragraph, is troubled by this question. Instead of executive clemency, why not have an additional round of judicial review of criminal convictions as a fail-safe? Judges could give reasons for their decisions, as is their practice, thus largely addressing the caprice problem. Even if you can exclude caprice, executive clemency is underdetermined by the argument from defeasibility. Nevertheless, the injustice of capital punishment, together with the generally applicable argument from defeasibility, achieve the rationalisation of the Irish period under examination, which was JMC's burden in Chapter 3. It is the richness of JMC's analytical framework that prompts more generalised legal-philosophical reflection.

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