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“On the other hand the accused is a woman…”: Women and the Death Penalty in Post-Independence Ireland

  • Lynsey Black
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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 servant, 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 recommended 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 following Independence in 1922, particularly the double-edged sword of mercy as it was experienced by condemned women.

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lblack@tcd.ie
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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 generous 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.

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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 fighting 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 persons does not meet the formal definition of mercy, which must be an individualized function, see, Sarat, Austin, 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 O'Donnell, Ian, Justice, Mercy and Caprice: Clemency and the Death Penalty in Ireland (Oxford: Oxford University Press, 2017).

4. Wilczynski, Ania, “Mad or Bad? Child-killers, Gender and the Courts,” British Journal of Criminology 37 (1997): 419–36; Shatz, Steven F. and Shatz, Naomi R., “Chivalry is not Dead,” Berkeley Journal of Gender, Law and Justice 27 (2012): 64112 .

5. Moulds, Elizabeth F., “Chivalry and Paternalism: Disparities of Treatment in the Criminal Justice System,” Western Political Quarterly 31 (1978): 416–30.

6. O'Brien, Gerard, “Capital Punishment in Ireland, 1922–1964,” in Reflections on Law and History, ed. Dawson, Norma M. (Dublin: Four Courts Press, 2006), 223–57; Doyle, David M. and O'Donnell, Ian, “The Death Penalty in Post-Independence Ireland,” Journal of Legal History 33 (2012): 6591 ; O'Donnell, Ian and Doyle, David M., “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, Doyle, David Matthew, “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 McAuliffe, Mary, “Irish Histories: Gender, Women and Sexualities,” in Palgrave Advances in Irish History, ed. O'Donnell, Katherine and McAuliffe, Mary, (London: Palgrave, 2009), 191212 .

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 Ballinger, Anette Dead Woman Walking: Executed Women in England and Wales, 1900–1955 (Aldershot: Ashgate/Dartmouth, 2000).

9. See O'Sullivan, Eoin and O'Donnell, Ian, “Coercive Confinement in the Republic of Ireland,” Punishment and Society 9 (2007): 2748 . This article offers a broad overview of the trends and figures for coercive confinement in the post-independence period, including discussion of Magdalen laundries, mother and baby homes, psychiatric asylums, and prisons, as well as the confinement of children in reformatory and industrial schools. For accounts of the nature of gendered social control in Ireland, see Smith, James M., Ireland's Magdalen Laundries and the Nation's Architecture of Containment (Manchester: Manchester University Press, 2008); Finnegan, Frances, Do Penance or Perish: A Study of Magdalen Asylums in Ireland (Piltown: Congrave Press, 2001); and Fischer, Clara, “Gender, Nation, and the Politics of Shame: Magdalen Laundries and the Institutionalization of Feminine Transgression in Modern Ireland,” Signs: Journal of Women in Society and Culture 41 (2016): 821–43.

10. For example, The Magdalene Sisters, a film directed by Peter Mullan, contributed significantly to the national debate on the detention of women in Magdalen laundries, see Smith, James M., “The Magdalene Sisters: Evidence, Testimony… Action?Signs: The Journal of Women in Culture and Society 32 (2007): 431–58. Other films also, such as Philomena (2013), directed by Stephen Frears, represent the continued salience of this issue in Irish society.

11. For example, the Final Report of the Commission to Inquire into Child Abuse (Dublin: Stationery Office, 2009), called the “Ryan Report,” exposed the levels of child abuse that had prevailed within the industrial and reformatory schools that were run by religious organizations. In 2013, the “McAleese Report,” the final report of the Inter-Departmental Committee to Establish the Facts of the State Involvement with Magdalen Laundries, was released. In 2015, the Mother and Baby Homes Commission of Investigation was established, with the remit to examine the entry and exit of women and children from these institutions, and to further examine the living conditions, circumstances, and mortality rates within these sites. See, “Minister Reilly announces the establishment of the Commission of Investigation into Mother and Baby Homes and Certain Related Matters,” Department of Children and Youth Affairs, February 19, 2015.

12. Brennan, Karen M., “‘A Fine Mixture of Pity and Justice’: The Criminal Justice Response to Infanticide in Ireland, 1922–1949,” Law and History Review 31 (2013): 793841 ; Brennan, Karen M., “Punishing Infanticide in the Irish Free State,” Irish Journal of Legal Studies 3 (2013): 135 ; Rattigan, Cliona, ‘What Else Could I Do?’: Single Mothers and Infanticide, 1900–1950 (Dublin: Irish Academic Press, 2012); Farrell, Elaine, “Infanticide of the Ordinary Character: An Overview of the Crime in Ireland, 1850–1900,” Irish Economic and Social History 39 (2012), 5672 ; and Farrell, Elaine, ‘A Most Diabolical Deed’: Infanticide and Irish Society, 1850–1900 (Manchester: Manchester University Press, 2013).

13. For example, some aspects of the Mamie Cadden case have been explored because of its proximity to the abortion question, see, for example, McAvoy, Sandra, “Before Cadden: Abortion in Mid-Twentieth-Century Ireland,” in Ireland in the 1950s: The Lost Decade, ed. Keogh, Dermot, O'Shea, Finbarr, and Quinlan, Carmel (Cork: Mercier Press, 2004), 147–64.

14. Occasionally, such women appear in “true crime” accounts such as Kiely, David M., Bloody Women: Ireland's Female Killers (Dublin: Gill and Macmillan, 1999); and Kavanagh, Ray, Mamie Cadden: Backstreet Abortionist (Cork: Mercier Press, 2006).

15. The Taoiseach is the premier of the Irish government.

16. Dana Rabin has cautioned that we must use legal sources with some caveats in mind; namely, that researchers “must provide the historical and the legal context in which the sources were produced.” Rabin, Dana, “Introduction,” Journal of Women's History 22 (2010): 133–35, at 134. A crucial part of this context is the inevitable power dynamics that held sway between the women in the present sample, and those in positions of authority through whom their narratives were conveyed and shaped. However, as Carolyn Strange notes “the prospect of teaching gender history without drawing on legal sources is inconceivable.” Strange, Carolyn, “A Case for Legal Records in Women's and Gender History,” Journal of Women's History 22 (2010): 144–48, at 144.

17. Robertson, Stephen, “‘What's Law Got to Do with it?’ Legal Records and Sexual Histories,” Journal of the History of Sexuality 14 (2005): 161–85.

18. Wood, John Carter, The Most Remarkable Woman in England: Poison, Celebrity and the Trials of Beatrice Pace (Manchester: Manchester University Press, 2012).

19. Scott, John, A Matter of Record: Documentary Sources in Social Research (Cambridge: Polity Press, 2000).

20. Wood, The Most Remarkable Woman in England; and Seal, Lizzie, “Imagined Communities and the Death Penalty in Britain, 1930–65,” British Journal of Criminology 54 (2014): 908–27.

21. The police service in Ireland was renamed “An Garda Síochána” following independence. Throughout this article they are referred to as the police.

22. Bosworth, Mary, “The Past as a Foreign Country: Some Methodological Implications of Doing Historical Criminology,” British Journal of Criminology 41 (2001): 431–42; and Robertson, “‘What's Law Got to Do with it?”.

23. Two of the women sentenced to death were called Annie Walsh. In 1925, Annie Walsh of Limerick was executed along with Michael Talbot for the murder of her husband. In 1929, Annie Walsh of Galway was convicted along with Martin Joyce for the murder of her husband; both Walsh and Joyce were reprieved. For the sake of clarity, these cases are referred to as Annie Walsh (1925) and Annie Walsh (1929).

24. Doyle and O'Donnell, “The Death Penalty in Post-Independence Ireland”.

25. For historical accounts of women and the death penalty in England and the United States see, for example, Beattie, J.M., Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986); Ballinger, Dead Woman Walking; and Streib, Victor L. The Fairer Death: Executing Women in Ohio (Athens, Ohio: Ohio University Press, 2006).

26. In a United States context, see, for example, Shapiro, Andrea, “Unequal before the Law: Men, Women and the Death Penalty,” Journal of Gender, Social Policy and the Law 8 (2000): 428–70; and Cunningham, Mark D. and Vigen, Mark P., “Death Row Characteristics, Adjustment and Confinement: A Critical Review of the Literature,” Behavioural Sciences and the Law 20 (2002): 191210 . Disparity by gender continues in the modern death penalty era in the United States; for example, Justice Thurgood Marshall noted in Furman v Georgia the “overwhelming evidence that the death penalty is employed against men and not women,” 408 US 238 (1972).

27. Brennan, “A Fine Mixture of Pity and Justice.”

28. NAI, Department of An Taoiseach S.5195. Memorandum, November 4, 1926.

29. Karen Brennan has shown how pragmatism further influenced the eventual enactment of the Infanticide Act 1949 as well, in the desire to close the gap between law and policy/practice, see Brennan, “A Fine Mixture of Pity and Justice”.

30. Donovan, Katherine O', “The Medicalisation of Infanticide,” Criminal Law Review May (1984): 259–64.

31. Brennan, “A Fine Mixture of Pity and Justice.”

32. Brennan, “Punishing Infanticide in the Irish Free State.”

33. Brennan, “A Fine Mixture of Pity and Justice.” In Farrell's nineteenth century sample, she found that in 84.7% of 4,645 suspected infanticide cases, the infant was recorded as illegitimate, see Farrell, “Infanticide of the Ordinary Character”.

34. McAvoy, Sandra, “The Regulation of Sexuality in the Irish Free State, 1929–1935,” in Medicine, Disease and the State in Ireland, 1650–1940, ed. Jones, Greta and Malcolm, Elizabeth (Cork: Cork University Press, 1999), 253–66; Luddy, Maria, “Moral Rescue and Unmarried Mothers in Ireland in the 1920s,” Women's Studies 30 (2001): 797817 ; and Ryan, Louise, “The Press, The Police and Prosecution: Perspectives on Infanticide in the 1920s,” in Irish Women's History, ed. Urquhart, Diane and Hayes, Alan (Dublin: Irish Academic Press, 2004), 137–51.

35. Earner-Byrne, Lindsey, “Reinforcing the Family: The Role of Gender, Morality and Sexuality in Irish Welfare Policy, 1922–1944,” The History of the Family 13 (2008): 360–69.

36. Ryan, Louise, Gender, Identity and the Irish Press, 1922–1937: Embodying the Nation (Lewiston: Edwin Mellen, 2002).

37. Gurevich, Liena, “Parental Child Murder and Child Abuse in Anglo-American Legal System,” Trauma, Violence and Abuse 11 (2010): 1826 .

38. The value placed on infant life from the nineteenth and into the early twentieth century has been questioned. Ian O'Donnell, for example, noted that as attitudes to infant life shifted, so did the corresponding criminal justice response, O'Donnell, Ian, “Lethal Violence in Ireland, 1841 to 2003: Famine, Celibacy and Parental Pacification,” British Journal of Criminology 45 (2005): 671–95.

39. Brennan, “A Fine Mixture of Pity and Justice.”

40. The “working rule” was found in various files such as NAI Department of Justice file 234/2016 on Elizabeth Hannon.

41. Prior, Pauline, Madness and Murder: Gender, Crime and Mental Disorder in Nineteenth-Century Ireland (Dublin/Portland, OR: Irish Academic Press, 2008).

42. Farrell, A Most Diabolical Deed.

43. Gurevich, “Parental Child Murder and Child Abuse.”

44. Linders, Annulla and Gundy-Yoder, Alana van, “Gall, Gallantry and the Gallows: Capital Punishment and the Social Construction of Gender, 1840–1920,” Gender and Society 22 (2008): 324–48, at 332.

45. Streib, The Fairer Death, 132–33.

46. NAI Department of Justice 234/2016. Memorandum, December 15, 1927.

47. NAI Department of Justice 18/3110A. Letter from the judge, December 10, 1938.

48. Vivien Miller has found that rationales for commutation or leniency were explicitly grounded in considerations of gender in Florida until as late as the 1940s, Miller, , “‘The Last Vestige of Institutionalized Sexism?’ Paternalism, Equal Rights and the Death Penalty in Twentieth and Twenty-First Century Sunbelt America: The Case for Florida,” Journal of American Studies 38 (2004): 391424 . The archival files on women sentenced to death in post-independence Ireland would suggest that this practice persisted beyond this date in Ireland.

49. This presented a traditional, rural, society, with women's place very much tied to the home and the domestic. This is enshrined in the Irish Constitution, at Article 41(2), which states that “The State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” See Mahon, Evelyn, “Ireland: A Private Patriarchy?Environment and Planning A 26 (1994): 1277–96.

50. Mahon, “Ireland: A Private Patriarchy?”; and Walby, Sylvia, Theorizing Patriarchy (Oxford and Cambridge, MA: Basil Blackwell, 1990).

51. “Letters to the Editor: The Edwards’ Case,” The Irish Times, May 18, 1935, 6.

52. NAI Department of Justice 234/2599. Letter, July 29, 1929.

53. NAI Department of Justice 18/9074A. Letter, April 8, 1946.

54. Ibid.

55. Ibid.

56. NAI Department of Justice 18/3562. Undated letter.

57. This view has been espoused by writers as diverse as Otto Pollak and Freda Adler. Pollak, for example, noted the inherent “deceitfulness” of women and the favor that they received in the criminal justice system. Adler situated her use of the concept within a women's liberation framework, which suggested that women's increasing equality would dispense with the need for male criminal justice actors to “protect” women, as women committed an increasing share of the crime. Otto Pollak, The Criminality of Women (New York: AS Barnes, 1950/1961); Adler, Freda, Sisters in Crime: The Rise of the New Female Criminal (New York: McGraw-Hill, 1976).

58. Beattie, Crime and the Courts in England, 439.

59. Ballinger, Dead Woman Walking.

60. Shatz and Shatz, “Chivalry is not Dead.”

61. Linders and van Gundy-Yoder, “Gall, Gallantry and the Gallows.”

62. See, for example, Farr, Kathryn Ann, “Defeminizing and Dehumanizing Female Murderers: Depictions of Lesbians on Death Row,” Women and Criminal Justice 11 (2000): 4966 ; Pearson, Kyra, “The Trouble with Aileen Wuornos: Feminist's ‘First Serial Killer’,” Communication and Critical/Cultural Studies 4 (2007): 256–75; and Atwell, Mary Welek, Wretched Sisters: Examining Gender and Capital Punishment, 2nd ed. (New York/Oxford: Peter Lang, 2014).

63. Carroll, Jenny E, “Images of Women and Capital Sentencing Among Female Offenders: Exploring the Outer Limits of the Eighth Amendment and Articulated Theories of Justice,” Texas Law Review 75 (1997): 1413–53.

64. Wilczynski, “Mad or Bad?”

65. Ibid., 426.

66. Rapaport, Elizabeth, “Some Questions about Gender and the Death Penalty,” Golden Gate University Law Review 20 (1990):501–65; Carroll, “Images of Women and Capital Sentencing”; and Salvucci, Jessica, “Femininity and the Electric Chair: An Equal Protection Challenge to Texas,” Boston College Third World Journal 31 (2011): 405–37.

67. Jones, Ann, Women who Kill (New York: Feminist Press, 2009), 23. See also, Beattie, Crime and the Courts in England.

68. NAI Department of Justice H1004/275.

69. NAI, CCC Limerick 1925 1C-90-14. Deposition of David Kenny, Police Officer.

70. “The Clonbrook Tragedy,” Leinster Express, January 10, 1903, 5. NAI CRF 1902 Daly 76.

71. “Remarkable Incident: Verdict and Sentence,” Examiner, March 10, 1905, 5. NAI CRF 1905 Pearson 4.

72. “Death Sentence,” Examiner, November 4, 1915, 6.

73. “Trial for Murder,” Examiner, March 31, 1870, 4. NAI CRF 1870 Sheil 7; CSORP 1870/6528.

74. O'Brien, “Capital Punishment in Ireland,” 225.

75. Doyle and O'Donnell, “The Death Penalty in Post-Independence Ireland,” 69.

76. Plater, David and Milne, Sue, “‘All that's good and virtuous or depraved and abandoned in the extreme?’ Capital Punishment and Mercy for Female Offenders in Colonial Australia, 1824 to 1865,” University of Tasmania Law Review 33 (2014): 83140 .

77. “Five Under Death Sentences,” Fermanagh Herald, July 18, 1925, 6.

78. NAI Central Criminal Court Kerry 1923 1C-79-22; Department of Justice 18/2769A.

79. NAI Department of Justice 234/2599. Letter from judge, July 30, 1929.

80. NAI CCC Galway 1929–1931 1C-94-56-58; CCA 16/1929; Department of An Taoiseach S.5904; Department of Justice 234/2599.

81. NAI CCC Wexford 1932 1C-95-73; CCA 9/1932; Department of An Taoiseach S.8653.

82. Jane O'Brien's age was referenced in material that petitioned for clemency. One notable example is the letter from the Lord Mayor of Dublin to the Archbishop of Dublin, Dublin Diocesan Archives, Archbishop House, Archbishop Edward Byrne, AB7/Lord Mayor of Dublin.

83. NAI Dublin City Commission February 5, 1924, County Kerry; Department of Justice 18/2769A.

84. NAI CCC Cork 1924 1C-79-21; CCA 17/1924; Department of Justice 234/1744.

85. As noted by Karen M Brennan, the mens rea for murder was more expansive in the early part of the twentieth century, explaining how McAdam could be prosecuted for murder while only intending minor harm. Karen M Brennan, “Murder in the Irish Family, 1930–1945,” in Law and the Family in Ireland: 1850–1950, eds. Niamh Howlin and Kevin Costello (London: Palgrave),160–80 .

86. NAI CCC Monaghan 1946 1D-29-11; CCA 16/1946; Department of An Taoiseach S.13804; Department of Justice 18/9074A.

87. NAI CCC Unknown Counties 1949 1D-50-42; CCA 68/1948; Department of An Taoiseach S.14430; Department of Justice 170/7622.

88. NAI CCC Dublin 1949 1D/29/7; CCA 72/1949; Department of An Taoiseach S.14689; Department of Justice 18/11757.

89. The doctrine of constructive malice ensured that as death resulted from the commission of a felony, an attempt to procure a miscarriage under s58 of the Offences Against the Person Act 1861, the mens rea, or malice, implicit in this crime was transferred to the resulting death. The doctrine was abolished in England and Wales under the Homicide Act 1957, and abolished in Ireland until the Criminal Justice Act 1964. The doctrine had come up particularly in relation to deaths resulting from abortion. In Cadden's case, it was argued as grounds in favor of commutation, NAI Department of An Taoiseach S16116, Telegram 4 January 1957.

90. NAI CCA 36/1956; Department of An Taoiseach S.16116; Department of Justice 18/3562.

91. Atwell,. Wretched Sisters; and Ballinger, Dead Woman Walking. The English case of Edith Thompson, executed in 1923, is illustrative of the detrimental influence that sexuality can wield. Thompson was executed for the murder of her husband, who had been stabbed by her lover Freddie Bywaters. In this case, although there was no conclusive proof that Thompson had foreknowledge of her lover's intentions to kill, her sexual dalliance was crucial in securing her conviction and execution. See, Seal, Lizzie, Capital Punishment in Twentieth-Century Britain: Audience, Justice, Memory (London: Routledge, 2014); and Bland, Lucy, “The Trials and Tribulations of Edith Thompson: The Capital Crime of Sexual Incitement in 1920s England,” Journal of British Studies 47 (2008): 624–48.

92. “Co. Limerick Murder: Man and Woman Executed,” Irish Examiner, August 6, 1925, 6.

93. It is evident, too, that some newspapers were “hedging their bets” in case a last minute reprieve was granted. “Irish Woman to be Hanged To-day,” Irish Independent, August 5, 1925, 5.

94. “Limerick Murder,” Freeman's Journal, November 18, 1924, 6; and “Hatchet Crime,” Freeman's Journal, November 13, 1924, 5.

95. “Fedamore Horror,” Limerick Leader, October 27, 1924, 3.

96. “Double Execution,” Irish Independent, August 6, 1925, 8.

97. “To Be Hanged: Brutal County Limerick Murder,” Examiner, July 10, 1925, 7.

98. Ibid.

99. “She Killed Him,” The Irish Times, July 10, 1925, 6.

100. NAI Department of Justice 18/2737A. Petition on behalf of Jane O‘Brien.

101. NAI Department of Justice 18/2737A. Letter from MJ O'Connor and Company Solicitors, Wexford, 13 July 1932.

102. Callahan, Kitty, “Women Who Kill: An Analysis of Cases in Late-Eighteenth- and Early-Nineteenth-Century London,” Journal of Social History 46 (2013): 1013–38, at 1030.

103. However, a forthcoming text from Ian O'Donnell should begin to address this gap, see O'Donnell, Justice, Mercy and Caprice.

104. Moulds, Elizabeth F., “Chivalry and Paternalism: Disparities of Treatment in the Criminal Justice System,” Western Political Quarterly 31 (1978) 416–30. In an Irish context, Karen Brennan writes that paternalism was evident in official responses to cases of suspected infanticide; she argues that in this context, paternalism was distinct from humanitarian considerations. Instead, this paternalism “reflected the patriarchal nature of Irish society and the gender ideologies of public officials.” Brennan, “A Fine Mixture of Pity and Justice,” 834. Vivien Miller has argued similarly, in relation to the death penalty regime in Florida. Miller argues that to execute women on the same terms as men would have undermined the differentiation between the sexes that prevailed in society. Invoking the paternalism that suffused the ideology of Southern states, Miller states that the more lenient treatment for women convicted of murder in twentieth century Florida cemented their inferior position. Miller, “The last vestige of institutionalized sexism?”

105. Davis, Kathy, “Paternalism under the Microscope,” in Gender and Discourse: The Power of Talk, Vol. XXX, ed. Todd, Alexandra Dundas and Fischer, Sue, (New York: Ablex Books, 1988), 23.

106. Doyle and O'Donnell, “The Death Penalty in Post-Independence Ireland”.

107. NAI Department of Justice 18/2769A. Note, November 6, 1936.

108. This “working rule” was found in various files within the archives; for example, NAI Department of Justice 234/2016 (Elizabeth Hannon); and Department of Justice 234/2603 (Catherine Aherne). “Home” in this context referred to the network of religious-run institutions across Ireland.

109. NAI Department of Justice 234/3332. Letter from Stephen Roche, November 17, 1933.

110. Doyle and O'Donnell, “The Death Penalty in Post-Independence Ireland”.

111. Moulds, “Chivalry and Paternalism”.

112. Quinlan, Christina, Inside: Ireland's Women's Prisons, Past and Present (Dublin: Irish Academic Press, 2011); and Rogan, M. Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (London: Routledge, 2011).

113. Quinlan, Inside: Ireland's Women's Prisons.

114. Ibid.

115. Moulds, “Chivalry and Paternalism.”

116. Raftery, Mary and O'Sullivan, Eoin, Suffer the Little Children: The Inside Story of Ireland's Industrial Schools (Dublin: New Island, 1999); Smith, Ireland's Magdalen Laundries; and O'Sullivan, Eoin and O'Donnell, Ian, Coercive Confinement in Ireland: Patients, Prisoners and Penitents (Manchester: Manchester University Press, 2012).

117. O'Sullivan and O'Donnell, Coercive Confinement in the Republic of Ireland.

118. Raftery and O'Sullivan, Suffer the Little Children.

119. Foucault, Michel, Discipline and Punish: The Birth of the Prison (London: Penguin, 1979/1991). Foucault's concept of the “carceral continuum” encompassed sites like the religious-run institutions in which many reprieved women were held.

120. Smith, “The Magdalene Sisters.”

121. Raftery and O'Sullivan, Suffer the Little Children.

122. Fischer, “Gender, Nation, and the Politics of Shame.”

123. Of these institutions, only Henrietta Street and the Bethany Home have not been officially classified as Magdalen laundries, although this was a point of criticism of the “McAleese Report” with regard to Henrietta Street. The Bethany Home has subsequently also become the subject of further investigations regarding the mistreatment of women and children.

124. NAI Department of Justice 18/6678A. Kate Owens's discharge from prison on these grounds may represent the further informal coercive power of such disposals. It may have been unlikely that she would have been released otherwise.

125. Ian O'Donnell, “Deflecting the Law from its Course: Capital Punishment and Clemency in Ireland, 1923–1990” (32nd Hugh M Fitzpatrick Lecture in Legal Bibliography, Bar Library of Ireland, December 1, 2015).

126. In an Irish context, Raftery and O'Sullivan noted that young women and girls were often placed in Magdalen laundries or industrial schools because they were viewed as being at risk of immorality, regardless of whether any wrongdoing or offense had occurred. See Raftery and O'Sullivan, Suffer the Little Children.

127. For discussions of ideas of the “Irish woman” in this period see, for example, Ward, Margaret, Unmanageable Revolutionaries: Women and Irish Nationalism (Dublin: Pluto Press, 1995); McAvoy, Sandra, “The Regulation of Sexuality in the Irish Free State, 1929–1935,” in Medicine, Disease and the State in Ireland, 1650–1940, ed. Jones, Greta and Malcolm, Elizabeth (Cork: Cork University Press, 1999), 253–66; and O'Connor, Barbara, “Colleens and Comely Maidens: Representing and Performing Irish Femininity in the Nineteenth and Twentieth Centuries,” in Ireland in Focus: Film, Photograph and Popular Culture, ed. Flannery, Eoin and Griffin, Michael (New York: Syracuse University Press, 2009) 144–65. For a succinct overview of Irish political approaches to sexuality, reproduction, and abortion from historical to contemporary practices, see Quinlan, Christina, “Policing Women's Bodies in an Illiberal Society: The Case of Ireland,” Women and Criminal Justice 27 (2017): 5172 .

128. Ryan, Gender, Identity and the Irish Press, 12.

129. Smith, Ireland's Magdalen Laundries.

130. Brennan, “A Fine Mixture of Pity and Justice.”

131. Smith, Ireland's Magdalen Laundries.

132. Rattigan, What else could I do?’

133. NAI Department of Justice 18/2769A. Petition, May 12, 1942.

134. Ibid., Report, July 27, 1942.

135. Ibid., Petition, 8 October 1942.

136. Issued under the Penal Servitude Acts 1853 to 1891.

137. NAI Department of Justice 234/2590. Minutes, October 29, 1929.

138. NAI Department of Justice 234/1744.

139. Fischer, “Gender, Nation, and the Politics of Shame,” 829.

140. Contemporaneous accounts of Magdalen laundries have also been published, see for example, Halliday Sutherland, “Irish Journey,” in Coercive Confinement in Ireland, 80–91.

141. O'Rourke, Maeve, “Ireland's Magdalene Laundries and the State's Duty to Protect,” Hibernian Law Journal 10 (2011): 200237 , at 200.

142. Smith, Ireland's Magdalen Laundries.

143. Justice for Magdalenes (JFM) (compiled by James M Smith, Maeve O'Rourke, and Claire McGettrick), “State Involvement in the Magdalene Laundries: JFM's Principal Submission to the Interdepartmental Committee” (Justice for Magdalenes, February 16, 2013). https://www.magdalenelaundries.com/State_Involvement_in_the_Magdalene_Laundries_public.pdf. Accessed 29 November 2017.

144. The “McAleese Report.”

145. Kennedy, Finola, Cottage to Creche: Family Change in Ireland (Dublin: Institute of Public Administration, 2001).

146. As noted by Smart, in Smart, Carol, Women, Crime and Criminology (London: Routledge and Kegan Paul, 1977).

147. Moulds, “Chivalry and Paternalism.”

148. Quinlan, Inside: Ireland's Women's Prisons.

149. NAI Department of Justice 234/1744. Letter to the Minister for Justice, November 6, 1927.

150. Moulds, “Chivalry and Paternalism.”

151. NAI Department of Justice 18/2770A. Memorandum to Minister for Justice, May 20 1940.

152. Gurevich, Liena, “Patriarchy? Paternalism? Motherhood Discourses in Trials against Children,” Sociological Perspectives 51 (2008): 515–39.

153. Davis, “Paternalism under the Microscope,” 23.

154. Ballinger, Anette, “Feminist Research, State Power and Executed Women: The Case of Louie Calvert,” in Escape Routes: Contemporary Perspectives on Life after Punishment, ed. Farrall, Stephen, Hough, Mike, Maruna, Shadd, and Sparks, Richard (London: Routledge/Cavendish, 2011), 107–33.

155. Ryan, Gender, Identity and the Irish Press, 12.

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 generous 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.

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Law and History Review
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