Abstract
Systems, all systems, place a high value on certainty. Their purpose, we are told, is to improve the prospect of rational, efficient and consistent outcomes. Since the Enlightenment, western societies have created modern systems designed to dispense justice by constructing similar arrays of processes and institutions. From the beginning, considerations of certainty and uncertainty were central to these developments. For Cesare Beccaria, in his oft-cited An Essay on Crimes and Punishment (1764), certainty was the ideal because it was effectual, whereas uncertainty was to be decried because it was cruel. 1 If Beccaria’s rational ideal was never achieved, then by the late nineteenth century the pursuit of certainty as a doctrine, especially in prisons, was increasingly seen as a problem, as a cause of cruelty. The institutions and regimes created had come to be characterised, according to their critics, by a warped form of certainty, undiscriminating uniformity. In his novel Moondyne, first published as a serial in 1878, the Fenian and former convict John Boyle O’Reilly captured this view by having the sympathetic Will Sheridan condemn the fictional head of the English prison system, Sir Joshua Hobb, with the words ‘confound the man…he would take a hundred men, with as many diseases, and treat them all for cholera.’ 2
The authors of the three books reviewed here – Padraic Kenney, Ian Miller and Ian O’Donnell – all share a fascination with uncertainty. This should be a characteristic of the academic: without a real why, after all, an intellectual project is phantom, even fake. More than that however, these scholars are aware that thinking about certainty and uncertainty has long been central to the particular question, what constitutes justice? While concentrating on elements of the justice system concerned with punishment – imprisonment and the death penalty – in their new books Kenney, Miller and O’Donnell have each identified groups, tactics, processes and ideas that have introduced, or at least heightened, uncertainty, and each has addressed a set of questions flowing from that uncertainty.
Kenney, in his superb study of political imprisonment and the modern prison, is most explicit about this. Using Ireland, Poland and South Africa as his prisms, Kenney first seeks to establish that the modern political prisoner emerged from the 1860s, and to explain why. Then, in nine thematic chapters, he holds his subject to the light, turning it steadily so that we can see it from multiple angles, while empowering us to think by providing us with rich evidence and carefully chosen case studies. For him, one of the defining characteristics of political prisoners, as distinct from other prisoners, is that during their experience of imprisonment ‘uncertainties, outweigh certainties’ (p. 5). Although this claim is made without acknowledging that the daily experience of the ‘ordinary prisoner’ is often far more uncertain and contingent than the edifice of prison rules and routines would suggest, it is, nevertheless, true on several levels.
‘One sure marker,’ Kenney writes of the political prisoner, ‘is that they are constantly wondering about, negotiating, or defending a status that is only partly visible’ (p. 21). They are, they insist, political prisoners, but that term is rarely defined in law, ensuring that the meaning of the term and attempts to establish the status seldom rest on assumptions shared by those who imprison and those who are imprisoned. If political prisoners are not criminal (and of this they, if not their incarcerators, are sure), then should they be in a system which has as its defined purpose the reformation of criminals? And if, nonetheless, they are inside such a system what can it, what should it, do with them? If these fundamental questions have the capacity to render prison authorities and their political masters hesitant and irresolute, then Kenney’s modern political prisoner is a ‘potent figure’ (p. 3) because she has recognised her capacity to intensify such uncertainty, to unbalance her captors further. By making the prison a site of politics, and through concerted activity, these prisoners, and their supporters, can pose myriad quandaries, foster disruption and, now and again, seed chaos.
If, in Kenney’s conception, political prisoners often generate the uncertainty that defines them, they are, he shows, first subjected to it. For the political prisoner, according to Kenney, ‘[a]rbitrariness, capriciousness, and internal inconsistency are operations of prison.…The practices of the political prison regime as applied by guards, administrators, and the system as a whole, destabilizes prisoners’ lives and minds (pp. 41-2).’ Arrest and imprisonment are carried out in a manner likely to shock and stun them. The environment they enter is designed to alienate them, an effect often amplified by frequent ‘abrupt physical relocation’. (p. 42) They are deprived of their names in the hope that they will become unrecognisable to themselves and to potential comrades. They know they are watched by the officials of the regime, while informers, or the mere rumours of informers, are deployed to unsettle them, to induce paranoia. They find themselves second guessing their every word, every act, wondering, am I giving something away? When compared to the non-political convict, it is much more likely that a political prisoner will not have a defined sentence (indeterminate internment is a common status for them), and even when the political prisoner has a defined sentence he has every good reason to be less than certain that he will serve all of it: states tend to afford primacy to political advantage and disadvantage over legal process when it comes to holding or releasing such prisoners (this is a theme that surfaces in all three books). The potential for early release may seem like an advantage to the prisoner, it can provide opportunity, but many political prisoners have also described the psychological cruelty of this not knowing. What should they hang on to when counting down the days is not an option? To whom and through what process do they pursue release? How are they to cope when the rumours of release come and go, come and go, come and go?
Having demonstrated the ways in which those who incarcerate seek to break down political prisoners, reduce them to states of profound uncertainty, Kenney contemplates the methods the prisoners use to recover certainty, to claim an identity and purpose, to reach for solid ground and, when possible, in the process create uncertainty for their incarcerators: Rendered illegible by the state’s prison, prisoners create their own illegibility and confuse the prison, refusing its terms. Denied the possibility of human agency, of having any influence on their future, prisoners make their own. As they devise communal structures, engage in protest, and invent universities, political prisoners create a new narrative and wrest back their own agency, forcing the regime to respond. (p. 263)
That political prisoners’ achievement of identity and purpose occurs both individually and collectively is a consistent theme for Kenney: ‘the politics of the prison emerges most powerfully out of a cell community.’ (p. 144). This necessitates communication inside the prison, and its chances of success are considerably boosted if communication out of, and into, the prison makes the creation of support communities possible. Kenney elucidates this in chapters on the ways in which political prisoners create formal and highly disciplined prison groups; on the how time in prison is used to test, to educate and to prepare the activist so that he might become useful inside the prison and influential afterward on the outside; on the transnational history of advocacy for political prisoners; and on various modes of collective prison resistance. If the state wants to use the prison to prevent political activity, it can discover to its cost that ‘prison is often less a deterrent to political activity than a forge of that activity’ (p. 232).
If other scholars have explored these themes and made many of these arguments before, then no one has made them so systematically or with the particular kind of nuance that comes from doing so comparatively. It is important to stress that this is no straightforward account of the triumph of the political prisoner over adversity. Passages where Kenney elucidates, for example, the effectiveness of prison escapes – ‘Each of these acts asserts a mastery over the guarded space, making the state institution a site for expression of freedom and control. The prison escape is about more than simply getting free’ (p. 100) – are matched by those in which he acknowledges that prisoners who found themselves embroiled in relentless low-level conflict with prison guards wondered whether this ‘even mattered or merely distracted’ (p. 86). In truth, political prisoners have ‘often found it difficult to inspire condemnation of their imprisonment’, discovering that it ‘took extreme measures like hunger strikes and forced feeding to ensure sustained attention, and even then that attention came principally from the regime rather than the general population’ (p. 122).
In Chapter Eight, ‘Why Wouldn’t I Laugh When I Win Either Way?’, Kenney considers that most infamous of tactics deployed by political prisoners, the hunger strike. In doing so, he emphasises that it is an attempt by prisoners to mitigate their uncertainty by claiming control over their own bodies and fates, while generating ‘new uncertainties for the regime, which must respond without knowing what exactly the prisoners are doing’ (p. 231). For any regime, the hunger strike poses numerous difficult choices at the level of its officials’ intimate interaction with the individual prisoner and at the level of political strategy. In creating this many-layered problem, Kenney notes, the hunger striker ‘does not have to be willing to die as long as the guards and administrators and ministry officials cannot be sure he is not’ (p. 214).
An examination of responses to, what Ian Miller describes as, the ‘highly communicative act’ (p. 11) of hunger strike forms the core of his book. In particular, he is concerned with the ethical uncertainty that has surrounded one highly contentious response, force feeding. As Miller makes clear, those who defended force feeding did so on the grounds that it was a medical measure taken to keep hunger strikers alive, arguing that the primary duty of the doctor was to preserve life. Those who made this case could point to a judicial decision of December 1909 when the courts rejected legal proceedings against a prison medical officer and the Home Office, taken by Mary Leigh, a suffragette who had been force fed for over a month during September and October of that year. For Leigh and her supporters force feeding was an assault. They, and those who followed them, emphasised the suffering involved for the patient: ‘fear towards the stomach tube, apprehension about its insertion into their bodies, and distress at the pain caused as the liquid poured through their digestive tracts’ (p. 79).
These elements, which were intrinsic to the process, were quite often accompanied by verbal harrying and physical restraint. Given this, there is no doubt that force feeding could be deployed as a disciplinary response, one, which Miller states, ‘negates the prisoners’ self-declared reclamation of their own bodies and strips them of their proclaimed right to die’ (p. 12). It acted as a form of intimidation, heightening the distress involved in hunger strike, while appearing to be directed at bringing the protest to an end rather than at protecting the patient. Represented this way, force feeing had ‘political purposes’ and involved doctors acting to ‘normalise institutional power relations’ (p. 14).
As Miller astutely points out, once it became known that a hunger striker could survive on a hunger strike for a considerable period without long-term health effects, the early use of force feeding (within three or four days of the commencement of a strike) looked less and less like health care and more and more like a tool of control. Further, when force feeding was implicated in cases where a prisoner lost his sanity (William Ball in 1911) or died (Thomas Ashe in 1917), force feeding became harder to defend as a legitimate therapeutic response. The Ball case, Miller asserts, ‘proved useful as it enabled opponents to portray force feeding as a harmful mechanism of emotional, as well as physical, torture’ (p. 53), while the Ashe case resulted in a public inquest during which the prison medical officer was ‘decisively cast as a doctor who had willingly abandoned the long-established medical ethical norms of his profession to force-feed’ (p. 80).
As such Miller argues that, in the past, whether the hunger strikers were the suffragettes of the early twentieth century or Irish Republican Army members of the 1970s, force feeding raised ‘broadly similar ethical debates’. Was force feeding torture? Did prison doctors have ‘an ethical duty to preserve life’? Had the state ‘the right to over-rule medical decision making to preserve the lives of prisoners who refuse to eat’? (p. 237). He – like Kenney – draws his readers’ attention to the contemporary relevance of his work through discussion of the prisoners of Guantánamo Bay, but A History of Force Feeding is focused on Britain and Ireland between 1909 and 1974. Miller charts expertly the general trend of the ethical debates about force feeding within those geographic and temporal parameters, while organising his arguments in six substantial chapters, each of which is given shape by a particular question. How were the terms of the ethical debates on force feeding framed during the suffragette strikes that first brought the issue before the public’s attention? What were the implications for the doctors who force fed or, at least, had to think about force feeding prisoners? What was it like to be on hunger strike, and force fed? Did war tend to affect the circumstances of hunger strike and force feeding for prisoners and doctors? If we turn our attention to ordinary prisoners (as distinct from political prisoners) on hunger strike, do we find that their different status affected whether and how force feeding was both carried out and regarded? Why did the medical ethics of force feeding come to be more clearly defined in 1974?
Some of these questions are pursued to more enlightening effect than others, but all are worth asking. Arguably it is in Chapter Six – when he looks at the fate of the nearly 800 prisoners ‘with no obvious political affiliation’ who went on hunger strike in England and Wales in the years between 1913 and 1940 – that Miller makes his most original contribution. Without political capital or public support, and viewed as criminal, these hunger strikers were especially vulnerable to the use of force feeding as a form of discipline. In Miller’s view: Prison doctors saw their role as being to ‘treat’ the moral and psychological problem of criminality through processes of socialisation and behavioural normalisation. In this context, food refusal came to be frowned upon as a potent expression of behavioural disorder, a perspective that undermined any sense that a prisoner’s grievance might, in some cases, be valid. (p.159)
Valuable, but less successful, is Chapter Three, which is centred on the question: ‘what implications did the exigencies of conflict have for prison doctors dealing with hunger strikes?’ (p. 68). Miller attempts to pursue this question by following the responses of, and effects upon, one man, Dr Raymond Granville Dowdall, the medical officer at Mountjoy prison, Dublin when faced with hunger strikes. During the 1910s, Dowdall force fed suffragettes, trade unionists and Irish nationalists. His case is interesting because for him the consequences were extreme, both professionally and personally. Following the death of Thomas Ashe in September 1917, an event blamed on his being force fed at Mountjoy, Dowdall endured significant public opprobrium, which likely contributed to his collapse into ‘complete nervous prostration’ by April and premature death in May 1918. 3 The public tribulations of Dowdall in the aftermath of Ashe’s death, and how these altered the debate about force feeding, are well captured, but the chapter would have been enhanced by a more effective portrayal of the daily dilemmas and pressures faced by a doctor dealing with a hunger strike: the intimacy of his interaction with the prisoner; the texture of the demands from his superiors; the small, inevitable calculations of self-preservation; and a deeper sense of what it felt like to force feed. Ethical standards may be clarified over time, but ethical behaviour is tested in the crucible of everyday choices. This quibble aside, by concentrating on the debates about the ethics of force feeding, Miller has focused our attention on the way in which medical ethics were and are perceived as a potential route to certainty in a situation defined by profound uncertainty, even as he reveals the limits of medical ethics in influencing behaviour.
The death penalty has long been discussed in terms of the role and import of certainty and uncertainty. For instance, it has been argued that the number of public executions conducted in England declined steeply from the 1830s, at least in part, because of the success of Samuel Romilly and others in advancing the critique that the incontinent handing down of death sentences, combined with differing (subjective) sentencing practices between judges and the subsequent inconsistent granting of reprieves by the monarch, had created not a rational and consistent regime but instead a death penalty lottery that brought justice into disrepute. 4
A century later, the southern Irish state still used execution, and the threat of execution, if comparatively rarely. Briefly and brutally, the state had made concerted use of the death penalty during the Civil War (June 1922 to May 1923), executing eighty-one republicans, and to some extent this ‘promiscuity’, as Ian O’Donnell characterises it, bled into the rest of the 1920s. A promiscuity which, in those years, saw the state proceed to execution in fifteen of thirty-five death sentences. During 1930s, however, seventeen death sentences – all of them mandatory sentences for murder – were handed down, and only five of these were carried out. The 1940s witnessed a noticeable spike (twenty-eight death sentences and fourteen executions), but the equivalent figures declined to seven and one for the 1950s, and to three and zero between 1960 and 1964. Although eight death sentences were handed down between 1965 and 1985, none were carried out.
The death penalty lottery, if the term remained appropriate at all, was then a much reduced phenomenon, and not just because the numbers were fewer. With the exception of ‘The Emergency’ years, between the end of the Civil War and the final handing down of a death sentence in Ireland (1985), only those convicted of murder were liable to a death sentence in Ireland. Of course, contingency remained. In any case of killing subjective judgements made by police, prosecutors, judge and jury all influenced the chances of a murder conviction and, therefore, exposure to execution. But even after a murder conviction, and (till 1964) the handing down of a mandatory life sentence, the executive could, indeed more often than not did, exercise its prerogative to reprieve. O’Donnell’s fascinating, thought-provoking and idiosyncratic book is an exploration of whether, when and why Irish governments exercised their power to grant clemency. How, in other words, did seventeen become five during the 1930s? ‘My aim’, he writes, ‘is to uncover the factors that inspired restraint in punishment’ (p. 16). He wishes to answer this question because it throws light on his primary concern: ‘whether the decision to allow the law to take its course, or to divert it to a less than lethal outcome, was a cruel lottery, or if there are patterns to be discerned’ (p. 15).
In pursuit of these questions, O’Donnell outlines the law and the process, introduces the actors, assesses their respective influence and identifies certain characteristics which, he argues, ‘predictably accrued to the prisoner’s advantage’ when their case was considered for reprieve. Finally, he considers the treatment of those reprieved, in particular examining how long they were likely to remain incarcerated and in which institutions. Although he acknowledges that ‘one could not predict with complete confidence how the government would deal with a particular case’, he insists that he has been able to distinguish ‘the most pertinent factors’ that were likely to lead to a decision to reprieve (p. 182). This has necessitated his inferring the likely reason for each decision from a reading of the individual files, because these decisions were ‘arrived at behind closed doors for reasons that were never divulged’ (p. 16).
Although admitting that the arcane and political, rather than judicial, process of deciding for or against clemency probably felt like an uncertain one for the convict – a feeling surely magnified by the stakes – O’Donnell insists that ‘While the decision regarding clemency was not bound by legal rules it was not anarchic.’ (p. 55). Indeed, he goes further. ‘In clemency cases in Ireland’, he assures us, ‘the parameters were clearly set’ (p. 183). But this is not quite true. Patterns observed and presented by O’Donnell in retrospect (and discussed below) are not the same, or at least are not always and necessarily the same, as parameters established – explicitly or implicitly – at the time. It is not just, as O’Donnell concedes, that the outcome ‘remained vulnerable to unexpected influences’ (p. 183), but rather if there were tides in the affairs of clemency then there were also reverse currents, eddies and sudden turns. O’Donnell is surely right that the process was not a pure lottery. Instead, in given cases, the odds might have been for or against someone under sentence of death, depending on whether one or more identifiable factors were in play. Yet odds remain odds, they are an attempt to calculate chance.
Further, one’s capacity to make a judgement on the accuracy of the odds (in this case, the validity of O’Donnell’s representation of the patterns) depends on the quality of information one is given, and some of the time in this book the reader is forced to trust O’Donnell. He has omitted much of the case details, withstanding the ‘seduction of the archive’ he tells us, because of the ‘danger of remaining at the level of case description rather than thinking inductively.’ But it is this evidence that would reveal whether he really has thought inductively. To be fair, he is perfectly aware that historians are given to raising their eyebrows, muttering and harrumphing, and invites them to prove him wrong, or otherwise, having taken on board his contribution: as he notes, ‘Historical research is painstakingly incremental’ (p. 14).
O’Donnell points towards several patterns that do seem comparatively clear-cut. If both judge and jury recommended mercy ‘this recommendation was invariably accepted’ (p. 94). The judge’s view carried more weight than the jury’s. Only once, in 1934, when James Meredith advised commutation in the case of John Fleming on the basis that the evidence was circumstantial, did the cabinet depart from the advice of a judge. Interestingly, the absence of such a recommendation to mercy from the judge was not always fatal: ten times governments decided in favour of a commutation without a recommendation from the judge. On the other hand, Henry Hanna was notably reluctant to recommend mercy and this mattered. He did so only once in eleven cases and eight times the sentence proceeded. This means that only 27.3 per cent of those sentenced to death in his court would subsequently receive a commutation. A recommendation from the jury carried less weight. The government allowed the sentence to proceed on nine of the sixteen occasions when the jury recommended mercy but the judge did not. Reasonably, O’Donnell wonders whether juries would have been more reluctant to convict if they had known the limits of their influence.
The times mattered. A convict was a good deal less likely to benefit from reprieve during periods when the state considered itself under existential threat. As O’Donnell puts it starkly: ‘A government under siege appreciates the communicative power of capital punishment’ (p. 129). This is borne out in the state’s actions during its still immature years following the Civil War and during ‘The Emergency’. Between 1923 and 1929 a commutation was granted in 57 per cent of cases, and during the 1940s, this figure was even lower at 50 per cent. These figures were lower than for any other period after the Civil War. Clemency, in contrast, he posits, ‘is a sign of a confident government’ (p. 128). This and the general post-war retreat from execution in Europe help to explain the absence of executions after 1954.
Of the twenty women sentenced to death, only one was executed, and none after Annie Walsh who was hanged in August 1925. This approach to female murderers was arguably not rational, but it was consistent, resting, O’Donnell suggests, on a ‘mixture of squeamishness, chivalry, paternalism and precedent’ (p. 94). A majority of these cases involved the killing of a child – ten in which the mother was the killer and another in which it was a grandmother. If all of these cases gave the government pause, tending to elicit pity and understanding, then so did the case of Edward O’Connor, who drowned his infant son, Paul, in 1948. In eliminating the death penalty for women who killed their infants, the Infanticide Act of 1949 was ‘a belated attempt to bring the law into with the long established practice’ (p. 194). But clemency was also extended to women in cases of adult murder where the governing impulse seems to have been ‘squeamishness about allowing women to die, no matter how heinous their crimes’ (p. 213).
Some of O’Donnell’s other hypotheses are more suggestive, resting on accumulated impressions drawn from the reading of case files. Cases involving ‘romantic entanglements that had soured’, ‘coercive sex’, ‘drunken husbands killing wives with whom they could not live amicably’ or ‘lovers dispatching rivals’ seem to him more likely to have resulted in the ‘undoing’ of a death sentence, and he cites particular instances of these (pp. 196–7). When discussing ‘coercive sex’ in particular, he briefly outlines three cases where a murder was accompanied by a rape and the sentence was subsequently commuted. In one of these, Patrick Monaghan’s murder of Lily McEvoy in 1939, the trial judge recommended mercy. The judge’s commentary included a suggestion that because McEvoy was an unmarried mother, Monaghan may not have expected ‘as violent resistance as was offered’ to the rape, thereby casting the victim as, in part, to blame for her own death. In the other cases, however, O’Donnell does not present evidence that the rape was a direct factor in considerations around commutation. Indeed, as late as 1959, Thomas O’Rourke believed it was his long-distant service during the War of Independence and in the National Army that would, perhaps, protect him as he sought to avoid death for the murder and brutal assault of his wife Joan. O’Donnell has a short section devoted to ‘Dreadful Deeds’ in ‘Turbulent Times’ (pp. 204–7). During such times, some perpetrators appear to have received the benefit of the doubt. Not all, but a striking number, of these killers were National Army soldiers or officers who committed their crimes in the months immediately after the Civil War. That they were granted clemency is particularly notable, given that this was a period when, as already noted, O’Donnell argues the state was generally parsimonious with its clemency. Reprieving one’s own soldiers, it seems, was seen as politic even as others were made to pay the full price for the fear of turbulence: perhaps this should not surprise.
Another subset identified as likely to escape the noose were those who were, in O’Donnell’s terms, ‘Legally Sane but Strikingly Odd’ (pp. 209–13). Although the convicts in the cases he identifies were not ‘legally insane’, evidence was deployed to suggest that they suffered from mental health issues or came from families with ‘histories of insanity’. This section concludes with a strangely uncontextualised observation by O’Donnell, which seems worth quoting in full: The existence of family histories of insanity was not surprising given the high level of psychiatric confinement during the period. The rate of hospitalization for mental illness in the Free State was higher than in any other country for which the statistics were available and the disproportionality was especially evident among the lower social classes. In 1963, the year before the abolition of the mandatory death penalty for murder, the rate of hospitalization per 100,000 for agricultural workers was 3,465 compared to 123 for employers and managers (O’Sullivan and O’Donnell 2012: 10, 271). (p. 213)
It is, however, O’Donnell’s deployment of his tripartite framework for categorising reprieve decisions that left this reviewer most uncertain. Each of those ‘sentenced to death but spared’, he suggests, ‘fits into one of three groups: justice (it would be morally wrong for them to pay the ultimate price); mercy (they deserve to die but evoke pity and are spared); or caprice (they deserve to die and there is a desire for them to die, but the decision to allow the law take its course is reversed for reasons that are not grounded in compassion)’ (p. 48). Distinguishing between justice and mercy is not straightforward at a general, definitional level (and, again, to be fair, O’Donnell demonstrates an awareness of this even as he does so), while distinguishing between justice and mercy when inferring the reasoning deployed by decision makers seems even more difficult. Caprice, meanwhile, is a loose and uncertain category by definition.
Nonetheless, O’Donnell proceeds to place each of the sixty-three decisions to reprieve a death sentence between 1923 and 1990 into one of these three boxes, and it is here that the reader is left most to the mercy of O’Donnell’s own judgement and is least supported in his or her independent thought by the deployment of evidence from the cases files. It is not that there is none, but it is not sufficiently consistent. The reader of this book will find himself or herself in constant conversation with O’Donnell: this is to the book’s credit, but it sometimes speaks to the book’s flaws.
Ireland’s history of imprisonment and punishment, indeed Ireland’s history of crime, remains a neglected area. For that reason alone, these three volumes are welcome. That all three are original, consistently challenging, and site Ireland’s history in the wider world of imprisonment and punishment history should ensure that they provide both jumping off points and models for future work.