New Website!

1 Mar

Please head over to our new website to check out the latest blogs and posts.

Information session – MA in Comparative Criminology and Criminal Justice

31 Jan

Interested in learning more about studying criminology at a postgraduate level? Join Dr. Ian Marder, Chair of the MA in Comparative Criminology and Criminal Justice at Maynooth University Department of Law, for an information session and Q&A about Maynooth’s flagship postgraduate criminology programme.

The event will take place over Zoom and provide you with information about our criminology master’s programme, and with other general information and advice about postgraduate study.

To attend, register now – the link to join the session on Zoom will be sent by email nearer the time.

Details: Thursday 25th February at 5.30pm.

Call for papers – The Dublin University Journal of Criminology

13 Jan

The Dublin University Journal of Criminology (DUJC) is Ireland’s first academic journal dedicated to criminological research. Established in 2020, we are set to publish our first volume in late Spring 2021. Submissions are now open for Volume I of the DUJC. We welcome submissions on topics of criminology and criminal justice from undergraduate or postgraduate students from any higher education institute on the island of Ireland. 

Submissions should be a maximum of 8,000 words and double-spaced. No preference is given to a particular referencing style. Submissions should be anonymous to ensure that the editorial process is kept anonymous. Cover sheets, which can be downloaded here, should be included with your submissions. Submissions should be emailed along with the cover sheet to du.journalofcriminology@gmail.com

Submissions will be open until midnight, 19th February 2021. If you have any questions, please feel free to reach out to our Editor-in-Chief, Nathan at du.journalofcriminology@gmail.com. More information can be found on our websiteFacebookTwitter, and LinkedIn pages. 

The Relevance of Social Deprivation to an Offender’s Moral Blameworthiness at Sentencing

28 Oct

This blog post was written by Liam Dempsey. Liam is currently working as a legal researcher in the Law Reform Commission and was the principal legal researcher on the Commission’s recently published Report on Suspended Sentences (LRC 123-2020). He has an interest in sentencing law and policy, both from a legalist and criminological perspective and has previously written about implicit judicial sentencing bias in the context of socioeconomically deprived offenders, and the duty of District Court judges to give reasons at sentencing.

NOTE: The views expressed in this post are those of the author, Liam Dempsey, and not those of the Law Reform Commission.

To what extent should an offender’s “dysfunctional background” (terminology as per The People (DPP) v Fitzgibbon [2014] IECCA 12 at para 9.5] be deemed relevant at sentencing? The principle of proportionality requires sentencing courts to impose a sentence that is proportionate to both the gravity of the offence and the personal circumstances of the offender. When constructing this proportionate sentence, the sentencing court should first assess the gravity of the offence, by reference to the harm caused and the offender’s moral culpability. The court should then make the appropriate discount from the “headline sentence” to account for the offender’s personal mitigating factors which justify a reduction in the severity of the sentence.

Returning to the initial question, traditionally, Irish appellate courts have held that an offender’s “dysfunctional background” is a relevant personal mitigating factor and should serve to reduce the severity of the sentence. However, recently the Court of Appeal has established that an offender’s “dysfunctional background” may be relevant to the assessment of the gravity of the offence, and in particular the moral culpability of the offender.

The concept of moral culpability in the Irish sentencing case law has traditionally centred on the state of mind or mens rea of the offender at the time of the offence. However, as Ashworth notes “culpability is a wider issue than cognition, as represented by the two legal terms of intention and recklessness, and extends to a wider range of volitional and situational factors” (2012, p. 121). The Court of Appeal has embraced this broader conceptualisation of moral culpability by introducing the concepts of “intrinsic moral culpability” and “actual moral culpability”. The offender’s intrinsic moral culpability refers to whether the offence was committed intentionally, recklessly or negligently, while his or her actual moral culpability is to be adjudged by reference to broader circumstantial or behavioural factors relevant to the commission of the offence (The People (DPP) v Shaun Kelly [2016] IECA 204).

Significantly, the Court has held on a couple of occasions that an offender’s “dysfunctional background” is relevant to the assessment of his or her actual moral culpability and may serve to reduce the gravity of the offence. In The People (DPP) v Leon Byrne [2018] IECA 120, the Court of Appeal held that the offender’s difficult upbringing, involving “neglect, criminality, homelessness and violence” and consequent descent into drug and alcohol addiction was a factor mitigating his actual moral culpability. Similarly, in The People (DPP) v Stephen Comey [2018] IECA 161 the Court recognised the offender’s “significant and chronic addiction as … a mitigating factor tending to reduce culpability”.

It could be argued that there is little practical difference between treating an offender’s “dysfunctional background” as a conventional mitigating factor or as a mitigating factor bearing on moral culpability. However, it is one thing to say that an offender’s “dysfunctional background” forms part of his or her personal circumstances and should, therefore, in line with the principle of proportionality, serve to reduce the severity of the sentence. It is quite another, at least in principle, to say that an offender’s “dysfunctional background” renders him or her less morally blameworthy for the offending behaviour and, by extension, reduces the gravity of the offence.

Indeed, this contextualised formulation of moral blameworthiness challenges well-established legal assumptions about free-will and individual choice, assumptions which have been described as “universal and persistent in mature systems of law” (People v. Wolff 3 94 P.2d 959, at page 979). The doctrine of free will has ensured that considerations such as social and economic deprivation have largely (although, see Bazelon, 1981; 1976) been dismissed as irrelevant to the question of criminal responsibility by the judiciary (Southwark London Borough Council v Williams) and academics (Morse, 1977; 2011). As Hudson puts it:

“Legal reasoning seems unable to appreciate that the existential view of the world as an arena for acting out free choices is a perspective of the privileged, and that potential for self-actualisation is far from apparent to those whose lives are constricted by material or ideological handicaps.”

(Hudson, 1994, p. 302)

However, perhaps it is justified that “the [substantive] criminal law treats man’s conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were” (Packer, 1968, pp. 74-75). After all, at the trial stage of the process, the determination to be reached as to criminal responsibility is binary in nature – guilty or not guilty. Conversely, the sentencing court, and particularly in sentencing regimes such as our own – underpinned by the “just deserts” of proportionate punishment – is primarily concerned with assessing the degree of blameworthiness that should be attributed to the offender for his or her unlawful acts (Ashworth and Von Hirsch, 2005, p. 134).

Nevertheless, despite the less binary nature of the sentencing stage of the criminal process, notions of free will and choice are still very much central to the punitive philosophies of retribution and deterrence, both of which have been established as forming two out of the three main sentencing aims in Irish law [Law Reform Commission, Report on Suspended Sentences (LRC 123-2020) at paras 3.18 – 3.21]. Deterrence theory is grounded on the premise that all human beings are rational actors with the capacity to weigh up the likely costs and benefits of engaging in criminal behaviour (Murphy, 2013, p. 219). Deterrence theory thus purports to provide moral legitimacy to the State, through the medium of the criminal courts, to punish persons who – as rational agents – have transgressed the criminal law.

Arguably the most influential subset of retributive theory has been the “benefits and burdens” argument, which posits that punishment is a just and proper response to a past offence, since it restores that “fair” balance of benefits and burdens in society which crime disturbs. When a person commits a crime, he or she benefits from others not breaking the law, while the rest of society is burdened at the hand of the criminal act. Punishment is, thus, society’s way of restoring the “social equilibrium” (see: Murphy, 2013; Duff, 1986 pp. 206-08).

Both theories of punishment, and in particular retributive theory, in seeking to provide moral justification to the State to punish, proceed on the assumptions that: criminal behaviour is an act of free will on the part of the offender, and; the criminal act disturbs an otherwise equal and fair society (O’Riordan, 2002, pp. 565 -566). Murphy (2013, pp. 241-242) points out the paradox inherent in these assumptions, noting that “retributive theory, though formally correct, is materially inadequate. At root, the retributive theory fails to acknowledge that criminality is, to a large extent, a phenomenon of economic class”.

These criticisms do indeed call into question the moral underpinnings of the Irish sentencing system. However, it should be noted that the traditional paradigms of retributive and deterrence theory are concerned with the question of “Why Punish?” In contrast, the recent line of case law of the Court of Appeal is, within the framework of the proportionality principle, concerned with the question of “How much to punish?” Therefore, it may be a step too far to assert that these decisions have the potential to place the Irish sentencing system on a sounder theoretical justificatory footing. Nevertheless, this line of case law should be praised for, whether advertently or inadvertently, acknowledging the reality that an individual’s circumstances and upbringing constrain the extent to which his or her criminal behaviour can be said to be an exercise in free will.

This becomes all the more important when we consider the empirical literature demonstrating that the social make-up of the Irish penal population is overwhelmingly made up of persons coming from the most socioeconomically deprived areas of Ireland (O’ Mahony, 1998; O’Donnell et al, 2008; IPRT, 2012; Bacik et al, 1998). O’ Mahony’s study of prisoners in Mountjoy Prison, Dublin, revealed that a third of interviewees hailed from inner-city corporation flats, with nearly all of the remaining interviewees coming from low-quality social housing. O’Mahony’s study also revealed that only 9% of interviewees grew up in a home where one of the parents was employed in a job which could be described as providing a reasonable standard of living (O’Mahony, 1998, pp. 620 – 625).

The extent to which Irish sentencing courts at first instance, particularly the Irish District Court, will embrace this development remains to be seen. O’ Malley (2011, pp. 120-123) notes how one of the main limitations of appellate guidance is its failure to transmit its jurisprudence to lower sentencing courts. Further, research in Ireland suggests that Irish District Court judges’ sentencing decisions may be informed by unconscious socioeconomic bias (Dempsey, 2016; Bacik et al, 1998), manifesting in a belief that the causes of crime are internal, stable and controllable, as opposed to a result of circumstance (O’Donnell, 2010; O’Nolan, 2013, pp. 94 – 95). Nevertheless, it is hoped that this recent line of case-law has a tangible impact at the coalface of the Irish sentencing system, where the incontrovertible link between crime and poverty is acutely apparent. As O’Nolan (2013, pp. 94-95), in her observational study of the District Court, noted: “most persistent offenders observed were vulnerable individuals with chaotic lifestyles characterised frequently by homelessness, drug and alcohol abuse, mental health issues and low levels of education”.

References
Ashworth, A. (2012) Sentencing and Criminal Justice 5th ed (Cambridge: Cambridge University Press).
Ashworth, A. & Von Hirsch, A. (2005) Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press)
Atiq (2013) E.H. How folk beliefs about free will influence sentencing: A new target for the neuro-determinist critics of criminal law. New Criminal Law Review 16 (3) 449-493.
Bacik, I. (1998) Crime and Poverty in Dublin: An Analysis of the association between community deprivation, District Court appearance and sentence severity in Bacik, I., O’Connell, M (eds) Crime and Poverty in Ireland (Dublin: Round Hall Sweet and Maxwell)
Bazelon, D.L. (1981) Foreword – The Morality of the Criminal Law: Rights of the Accused. Journal of Criminal Law and Criminology 72 (4) pp. 1143-1170.
Bazelon, D.L. (1976) The Morality of the Criminal Law. Southern California Law Review 49, p. 385.
Dempsey, L. (2016) ’The Greater of Two Evils? – Examining Sentencing Variations in the Irish Courts: A Critical and Methodological Appraisal. UCD Law Review 16 pp. 163-206.
Irish Penal Reform Trust (2012) The Vicious Circle of Social Exclusion and Crime: Ireland’s Disproportionate Punishment of the Poor (Position Paper, Shifting Focus).
O’Donnell, I. (2007) When Prisoners go Home: Punishment, Social Deprivation and the Geography of Re-integration. Irish Criminal Law Journal 17(4) p. 3.
O’ Donnell, I., Healy, D. (2010) Crime, Consequences and Court Reports. Irish Criminal Law Journal 20 (1) pp. 2-7
Ian O’Donnell, I., Eric .P. Baumer, E.P., Hughes, N. (2008) Recidivism in the Republic of Ireland. Criminology and Criminal Justice (8) p. 123.
Duff (1986) Trials and Punishments (Cambridge: Cambridge University Press, 1986).
Von Hirsch, A. (1993) Censure and Sanctions (Oxford: Oxford University Press).
Jones, M. (2003) ‘Overcoming the Myth of free will in criminal law: The true impact of the genetic revolution’. Duke Law Journal 52 pp. 1031-1053.
Law Reform Commission, Report on Suspended Sentences (LRC 123-2020)
Morse, S.J. (1977) The Twilight of Welfare Criminology Faculty Scholarship. Paper 1293.
Morse, S.J. (2011) Severe Environmental Deprivation (AKA RSB): A tragedy not a defense. Alabama Civil Rights & Civil Liberties Law Review (2) pp. 147-173
O’Malley, T. (2006) Sentencing; Towards a Coherent System (Dublin: Round Hall).
O’Mahony, P. (1998) Punishing Poverty and Public Adversity in Bacik, I., O’ Connell, M. (eds), Crime and Poverty in Ireland (Dublin: Round Hall Sweet and Maxwell).
Murphy, J. (2013) Marxism and Retribution. Philosophy and Public Affairs 2(3) 218
O’ Nolan, C. (2013) The Irish District Court: A Social Portrait (Cork: Cork University Press).
Packer, H. (1968) The Limits of the Criminal Sanction (Stanford: Stanford University Press).
O’ Riordan, P. (2002) ‘Punishment in Ireland: Can we talk about it?’ in O’Mahony, P. (ed) Criminal Justice in Ireland (Institute of Public Administration).
Robinson, P. (2011) Are we responsible for who we are? The Challenge for Criminal Law Theory in Defences of coercive indoctrination and “Rotten Social Background”. Alabama Civil Rights and Civil Liberties Law Review (2)(2) p. 53.

Case Law

The People (DPP) v Leon Byrne [2018] IECA 120.
The People (DPP) v Cawley, Court of Criminal Appeal, 22 March 1999.
The People (DPP) v Stephen Comey [2018] IECA 161.
The People (DPP) v O’Dwyer [2005] 3 IR 134).
The People (DPP) v Fitzgibbon [2014] IECCA 12.
The People (DPP) v Hall [2016] IECA 11.
The People (DPP) v Shaun Kelly [2016] IECA 204.
The People (DPP) v MAF [2016] IECA 14.
The People (DPP) v McCormack [2000] 4 IR 359.
The People (DPP) v TB [2016] IECA 250.
(People v. Wolff 3 94 P.2d 959).
Southwark London Borough Council v Williams [1971] Ch 734.

Applying Merton’s Strain Theory to Modern Dublin City in the Context of a Class-Based Society

9 Oct

This blog piece was written by Shane Conaty. Shane is currently working as a research assistant on Dr Etain Quigley’s IRC New Foundations project ‘Juvenile Sexual Offending: An EU Prevalence and Criminal Justice Response Study.’ Shane is also working with the ACJRD on their online presence in a post-Covid-19 world. Shane completed his MA in Comparative Criminology and Criminal Justice in the Department of Law, Maynooth University.

Twitter – @conaty95

Sociologist Robert Merton’s social strain theory is one of the most popular theories of Criminology, and although it was theorised in the context of the ‘American dream’ in the late 1930s to early 1940s, it can just as easily be applied to modern Irish society. Hemmens defines strain theory as what happens “when legitimate opportunities to attain success goals are blocked by structural obstacles” (2011: 127). Strain theory can generally be explained as the strain that occurs when individuals feel pressured by society to pursue culturally-accepted goals, though they do not have the means to legitimately achieve them. The class-division Ireland currently experiences, given the rising number of homeless people and poor-working-class families tethering just above the poverty line, means that strain theory can be applied as a possible explanation for the higher rates of crime in lower socio-economic areas. Dublin is a prime example of the theory in practice. McCarthaigh (2019) notes for example, that North Dublin’s crime rates from 2018 were five times above the national average. While this may be partially explained by the population of Dublin being higher than any other county, it is nonetheless a large jump in crime rate. North Dublin has higher numbers of homeless people and lower working-class families than many other parts of Ireland.

If we continue to use Dublin as an example, there exists a clear class-division within the city, when north and south of the River Liffey are compared in terms of income and living standards. And with the cost of living rising rapidly over the last decade, the gap between those lower socio-economic citizens and those better off, widens. Thejournal.ie (2020) found that Dublin was ranked one of the most expensive places to live in Europe this year, above cities such as Milan, Paris and Amsterdam; a statistic which is likely to warrant property and other monetary-related crime from those people who feel the strain and cannot achieve their goals in society via legitimate avenues. Baron (2006) finds that financial gain drives the majority of crime associated with strain theory, or at least that crime is driven by people frustrated by the monetary gain of others around them. The feeling of frustration that comes from finding it financially tough often leads to property and violent offences, as those responsible disassociate from societal norms and pursue goals via their own, illegitimate means. Similarly, Rice (2006: 39) finds that “failure to achieve monetary goals was a more significant predictor of crime than were educational expectations”.

The failure to achieve monetary goals aligns with the consequences of strain theory and the coping mechanism of those who experience it. One of the main coping mechanisms used to ease the societal strain is the consumption of drugs and alcohol. According to the Central Statistics Office (2019), the number of controlled drug offences rose by 17.3% last year to a total of 21,475 across the country. Meanwhile, Jordan (2020) notes in the Irish Mirror that the number of drug offences across Ireland more than doubled from 18,592 in 2003 to 42,950 in 2019. The frustration of missing out on legitimate financial gain not only explains the consumption of drugs to deal with the lack of opportunity but can also be linked to the high number of property-related offences, as a measure of illegitimate financial gain. Offences of damage to property and the environment also increased by 1.8%, while thefts were up from 66,920 to 68,414 (Central Statistics Office, 2019). There is little evidence that the harsh punishment of minor drug offences is of any major benefit, either to the offender or the state. Leonard and Windle (2020: 1) note that “criminal sanctions can be stigmatising and impede recovery and desistance”. Amid increased demand for reviews of legislation regarding Ireland’s drug policy, the country’s pilot Safe Injecting Facility (SIF) was backed by the government, despite initially being rejected by Dublin City Council, with planning permission being granted last December (ibid). To punish citizens for minor offences such as drug possession merely serves to punish them for the facilitation of strain theory by society, through the lack of monetary and cultural opportunity, and to punish citizens for their attempt to escape the consequences of social exclusion.

Poorer citizens are often punished more harshly at court, based on their social profile, or even their gender in some cases. Thejournal.ie (2019) note that data recorded from 2017 shows that an incredible ninety-five percent of women in Irish prisons were sentenced on such petty offences as shoplifting or handling stolen goods. It is also noted that substance abuse and homelessness were some of the main causes for women who offended; as I’ve examined already, these are leading causes of crime in a society where people experience strain theory. The Irish Penal Reform Trust (IPRT) claim that “the relationship between social exclusion and crime is indisputable” (2012: 5) in examining the social profile of prisoners in Ireland. The argument is that the law is designed in such a way to punish those of a lower social class more harshly, and that this has always been the case, taking into account punishment of such offences from decades past as vagrancy, non-payment of fines and begging in a public place (later amended to the Criminal Justice [Public Order] Act 2011) (Irish Statute Book 2011). The IPRT’s argument of “evidence of over-policing in disadvantaged areas” therefore results in a greater number of arrests and sentences for those offenders, which is disproportionate to those small number of white collar criminals from more advantaged areas who are sentenced. According to thejournal.ie (2019) women are also at a disadvantage when it comes to application of the law. I’ve mentioned that the vast majority of incarcerated women in Ireland are in prison for petty offences, however the percentage of men (79%) who were sentenced in the same year (2017) for petty crimes was also very high. That being said, Teresa Clarke, the regional manager of the Mountjoy Prison visitors’ centre, agrees that 95% of women being sentenced for petty offences is a sure sign that the system creates a cycle of crime, in a sense. According to Clarke, those women should either be in addiction or mental health services and “putting them into prison serves absolutely no purpose” (thejournal.ie 2019). For a long time, the IPRT have advocated for prison to be used only as a last resort to avoid unnecessary prison time and for increased community sanctions for minor offences, where the custodial sentence would be less than twelve months. It would appear from this evidence that their concerns are validated, particularly when it comes to those citizens from disadvantaged areas, who are punished disproportionately. For example, the IPRT (2020) note that sentences of less than three months increased from 1,070 to 1,552 in 2019.
Should the criminal justice system continue to operate this way, it arguably only serves to punish a larger, poorer cohort of offenders to a fuller extent of the law, while glossing over the societal issues which brought them before the courts to begin with. According to Social Justice Ireland’s (2020) research, before COVID-19 emerged, one in every seven Irish people survived on an income below the poverty line. That works out at approximately 680,000 people living on a socio-economic level which is evidently linked with crime causation and who are often punished unfairly on minor offences. As Wolnik claims in the Irish Examiner (2019), offenders are more likely to be found guilty if they are from a homeless or poor social background: “that is how the system works”. There is sufficient evidence to say that prison is not the answer when it comes to minor offences as it impedes desistance and recovery from addiction and is disproportionately applied in disadvantaged areas. Strain theory mainly captures those citizens of lower socio-economic groups, who often turn to drugs and alcohol or petty theft, merely as a means of escape from the lack of opportunity to pursue cultural goals, only for them to be disproportionately punished by the very system which created the issues they face every day.

References
Baron, S. (2006). Street youth, strain theory and crime. Journal of Criminal Justice [online], 34(2), pp.209-223. Available from: sciencedirect.com/science/article.

Central Statistics Office. (2019). Crime incidents in fraud and drug offence categories rise in 2019 [online]. Available from: cso.ie/en/releasesandpublications/ep/p-rc/recordedcrime/q42019 [accessed 21 September 2020].

Hemmens, C. (2011). There’s a darkness on the edge of town: Merton’s five modes of adaptation in the lyrics of Bruce Springsteen. International Journal of Comparative and Applied Criminal Justice [online], 23(1), pp. 127-136. Available from: tandfonline.com/doi/abs/10.1080 [accessed 15 September 2020].

Irish Penal Reform Trust. (2012). The Vicious Circle of Social Exclusion and Crime: Ireland’s Disproportionate Punishment of the Poor [online]. Available from: iprt.ie/site/assets/files/6264/position_paper_final.pdf [accessed 18 September 2020].

Irish Penal Reform Trust. (2020). Facts and Figures [online]. Available from: iprt.ie/prison-facts-2/ [accessed 5 October 2020].

Irish Statute Book. (2011). Criminal Justice (Public Order) Act 2011 [online]. Available from: irishstatutebook.ie/eli/2011/act/5enacted/en/html [accessed 17 September 2020].

Jordan, A. (2020) ‘Most crime-ridden districts in Ireland unveiled as stats show worst-hit garda stations’, Irish Mirror, 27 April 2020. Available at: irishmirror.ie/news/most-crime-ridden-districts-ireland-21930352. (Accessed 20 September 2020).

Leonard, J and Windle, J. (2020). ‘I could have went down a different path’: Talking to people who used drugs problematically and service providers about Irish drug policy alternatives. International Journal of Drug Policy [online], 84, pp. 1-8. Available from: sciencedirect.com/science/article.

McCarthaigh, S. (2019) ‘Dublin’s north inner city has highest crime rate in the State’, Irish Times, 02 October. Available at: irishtimes.com/news/crime-and-law/Dublin-s-north-inner-city-has-highest-crime-rate—in-the-state. (Accessed 18 September 2020).

Rice, S. (2006) General Strain Amid Restoration: An Examination of Instrumental and Expressive Offenses. Doctoral Thesis. University of Florida. Available at: libguides.ioe.ac.uk. (Accessed 19 September 2020).

Social Justice Ireland. (2020). Policy Issues Concerning Income Distribution and Poverty [online]. Available from: socialjustice.ie/content/policy-issues/type/income-distribution-and-poverty.

thejournal.ie (2019). Almost all women in Irish prisons are there for committing petty crime [online]. Available from: thejournal.ie/women-prison-ireland-petty-crime [accessed 22 September 2020].

thejournal.ie. (2020). Dublin ranked as one of the most expensive places to live in Europe [online]. Available from: thejournal.ie/Dublin/expensive-europe-euro-cost-of-living [accessed 22 September 2020].

Wolnik, J. (2019) ‘Homeless people are not criminals, poverty is not a crime’, Irish Examiner, 12 December 2019. Available at: irishexaminer.com/opinion/yourview/arid-30969907.html

A gallows confession in early Stuart Ireland

22 Sep

Mary Babington lady dowager to Christofer late Lo: Baron of Dunsany, was murthered at Clonny by honora ny Caffery (nurse to one of her children) the xixth of March 1609. Shee lefte issue Patricke now Lo: Baron of Dunsany aged aboute fifteen yeeres & a daughter. A knave not longe after executed for an other crime, cleared this wretched woman (who had suffered beinge burnte) & tooke the murther uppon himselfe.[i]

Above is the funeral entry for the Lady Dowager Dunsany, who was killed in Spring 1610 at Clonee, just west of Blanchardstown on the Meath/Dublin border. What is noticeable is that a text that was usually reserved to detail the funerals of the great and good of Irish society, the demise of Honora Ní Caffery takes up as much, if not more of the entry, and it certainly leaves an impression on the reader. But to those intimately familiar with seventeenth-century Ireland, it may not be that outrageous.

Early modern society was particularly violent, and the behavior of prolific men such as the earl of Castlehaven (ordering his servant to rape his wife)[ii], the lord Dunboyne (killing a relative)[iii], or the Lord Howth (extremely brutal assaults of his butler, wife, and daughter, committing probable manslaughter against the latter)[iv] provide example of just how violent the domestic sphere could be. So too, it wasn’t uncommon to find women who murdered in the domestic environment, such as Jane Comerford killing her husband in Tipperary in 1675, surviving for at least a time by ‘benefit of her belly’ (claiming pregnancy)[v], or two women in Galway in 1652, executed for killing children.[vi]

This alleged matronacide was somewhat different. A servant killing her mistress represented an inversion of the ‘natural order’ of society and was genuinely shocking to contemporaries. Under common law, this represented a petty-treason. Reform of the law of murder in Ireland in 1495 had upgraded all murders to high treason, and so all murders now carried a sentence of hanging, drawing, and quartering for males and burning for females, hence the sentence for Ní Caffery above.[vii] It would appear that the authorities in 1495 felt would-be criminals didn’t fear a traditional hanging and hence the need to ‘get tough on crime’. It is difficult to say whether Ní Caffery was alive when she was burned. Conventional thought on the punishment in England is that at least sometimes the individual might, as a humane favour, have been strangled in advance of ignition, although in cases where society demanded suffering of the convicted person, this was not always the case.

Why then the gallows confession by the unidentified ‘knave’ after he had been convicted and was awaiting sentence to be carried out for another crime, which was most likely a murder? All felonies could carry a death sentence, but it was not altogether often seen for crimes other than murders and regular political treasons. Although we can’t be sure, there was unlikely to have been any practical benefit to his late-founded honesty. If anything, it would surely have turned public and judicial opinion more firmly against him. If he had been convicted of something other than murder or treason, his hanging would now have been upgraded to hanging, drawing, and quartering whilst still alive, followed by the dismemberment and public display of his body parts. Perhaps there was a remorse that he felt the need to publicly acknowledge his initial wrong-doing and the subsequent horror that the maid-servant experienced, or perhaps it was in an effort to preserve or promote the salvation of his soul in advance of his impending doom. Maybe he felt empowered by illustrating the unfairness of the system and the inability of the criminal justice system to provide justice for the lady dowager and also for her most unfortunate servant. Ultimately, it is impossible to say.

Reminded some years back by Sir Anthony Hart (now sadly departed), a case like this makes me think of a statement by the duke of Ormond (1610-88), lord lieutenant of Ireland for three terms and the dominant political force in seventeenth-century Ireland. Usually eager to be lenient, Ormond opined that whereas a reprieved man might be hanged, a hanged man could never be reprieved.[i]

Dr Coleman A. Dennehy

Humanities Institute

University College Dublin

Twitter – @ColemanDennehy



[i] National Library of Ireland, Geneological Office MS 66: Funeral Entries, vol. 3, 1604-1622, f. 21v.

[ii] C.B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehave (Oxford, 1999).

[iii] C.A. Dennehy, ‘Nisi per legale judicium parium suorum: Trial by peer in the criminal trial in early modern Ireland’ in P. Crooks & T. Mohr, Law and the idea of liberty in Ireland from Magna Carta to the present (Dublin, Forthcoming).

[iv] British Library, London, Add. MS, 47,172, ff39-42.

[v] National Library of Ireland, MS 4,908, [n.p.], Autumn assize, 1675.

[vi] R. Dunlop, ed., Ireland under the Commonwealth, being a selection of documents relating to the government of Ireland from 1651 to 1659 (Manchester, 19113), p. 271. On this occasion, ‘the two women, condemned to be burnt for murdering two children, be hanged instead, according to English law’.

[vii] 10 Hen. VII, c. 21 (Ir.).

[i] Bodleian Library, Oxford, Carte MS, vol. 219, f. 520.

The Normalization of Consent in Ireland

21 Sep

This blog piece was written by Ashley Perry. Ashley is a 2nd year PhD student at the Irish Centre for Human Rights at NUI Galway. Ashley’s research pertains to barriers to accessing justice for victims of sexual violence in jurisdictions across Europe which define rape differently. Particularly, her research utilizes a mixed-methods approach when comparing jurisdictions that define rape as sex without consent or through the use of force or the threat of force. The research aims to demonstrate that standalone, progressive legislation, such as defining rape as sex without consent, can present the same barriers to accessing justice that are found in other types of legislations if the criminal justice mechanisms that support the legislation are not properly monitored.

The Normalization of Consent in Ireland

The revelations of UCD lecturer, Dr Aoibhinn Ní Shúilleabháin, of being sexually harassed by a fellow academic for two years have instigated more questions than answers on how higher education institutions are ensuring the safety of those working and studying within their confines. The case also demonstrates that broader institutional barriers to access justice for victims across Ireland persist.

From the unacceptable measures carried out by the UCD human resources department to the failings of the administration at large to protect staff from sexual harassment, we should be perplexed as to how such acts can occur and continue without appropriate reprimand, which threatened Ní Shúilleabháin’s safety and wellbeing.

How could the heavily documented harassment such as following, initiating unwarranted, constant contact, and stalking the victim outside of Dublin, not warrant grave concern for Dr Ní Shúilleabháin’s well-being with the human resources department at UCD? Particularly, how can a victim repeatedly report harassment without the University considering that there is a case to initiate disciplinary proceedings?

Addressing these questions goes beyond the case at hand, yet it does provide a clear representation of how barriers to accessing justice for victims of sexual harassment and violence often lie not with lack of theoretical policies, but how these policies function in practice. Therefore, leaving significant developments needed to support victims once a complaint has been made.

Within the ‘Me Too’ era, the topic of consent, in many countries across the globe, has been superficially normalized. Normalization, in the sociological sense, is to form an idealized code of conduct that is rewarded when adhered to and punished if disobeyed. Within the context of consent, normalization cannot stand alone in theory, but as an established practice that prompts institutions to construct and implement systems to reward or punish those who are ‘under the norm’. More specifically, the construction and implementation of these systems should foundationally strive to eliminate barriers to accessing justice for individuals who fall victim to the norm being broken. In juxtaposition, the superficial normalization of consent is to acknowledge the concept of autonomy and breaches of such, without actively pursuing and implementing it in practice within criminal justice mechanisms and the systems that model their policies. For the normalization of consent to be fully realized, criminal justice mechanisms and the systems that model them should not only have blanket consent-based policies but ensure they work in practice and are accessible to victims through each step of the complaint process and beyond.

We can see this disconnect manifesting in real time in the statements made by government officials in the wake of the distressing reports from UCD. For example, the Minister for Further and Higher Education, Simon Harris, almost immediately published a video message to the public via Twitter. He condemned the actions of the perpetrator and the mishandlings of the University, while calling for a zero-tolerance policy for sexual harassment in higher education. However, this sentiment has already been adopted, in theoretical policy, in higher education institutions across Ireland for years. Yet, in practice, the accessibility and implementation procedures leave complainants, more often than not, without the ability to access effective remedies. Dr Ní Shúilleabháin mirrored this view when talking on RTÉ Live with Claire Byrne:

“You can have bright, shiny, and new policy and procedures, but unless everyone knows what they are and unless the cultures within these systems are changed to help victims who want to disclose what is happening to them so they can get support and then maybe complain if they wish to change, it can’t happen.

The parallels between the barriers to access justice in this case and for other victims of sexual harassment and violence aren’t merely negative coincidences within an overall functioning system. To the contrary, there are commonalities in the prolonged investigative processes, unsatisfactory victim support, and lack of updated information involving the case.

Dr Ní Shúilleabháin has discussed how the human resources department did little to encourage her to pursue a formal complaint and, at times, warned against this due to a prolonged investigative process. This is often expressed to victims of sexual harassment and violence within the criminal justice system. Though victims are believed, the ‘complaint-to-prosecution-to-conviction’ process could continue for years without resolution or remedy.

The Dublin Rape Crisis Centre highlighted this shortcoming in a report in 2018. The organization called for the criminal justice system to prioritize trials with an agreed, prompt schedule as victims can experience emotional fatigue from having to relive trauma for years in search of justice. In some cases, victims will choose not to proceed with the prosecution phase for this exact reason, which similarly delayed Dr Ní Shúileabháin from filing a formal complaint. To this day, little has been done to actualize this recommendation within institutional practice.

Similarly, a 2017 report, published by the National Women’s Council of Ireland, stated that formal reporting is often contingent on the nature and level of support given to victims when initially coming forward to a reporting body. The human resources department in question and the criminal justice system victims in Ireland navigate, oftentimes fall short in providing adequate support due to how victims’ demeanour and actions are presented. Dr Ní Shúileabháin admitted to being conscious of her pending contract at UCD and how her temporary status impacted her willingness to report. She did, however, document with the human resources department via email each incident of harassment. Factors like this limited her personal expression of concern, but nonetheless, did not alter her consciousness of the severity of the situation. If consent is to be normalized, support and guidance on how to proceed should be readily and enthusiastically available no matter the victim’s physical or verbal demeanour.

Another institutional barrier to accessing justice within the UCD case and those of victims across Ireland is the lack of information on how issues brought forward were dealt with internally. Whether it be Dr Ní Shúileabháin’s constant uncertainty of how her informal complaints were investigated and handled accordingly or victims’ consistent report of a lack of or insufficient communication portal with the investigating authorities, the uncertainty leaves the emotional, and at time physical, well-being of victims at risk. Irish Criminology scholar, Dr Deirdre Healy, reaffirms this point by stating (at page 23 of this 2019 report):

“Research suggests that satisfaction rates tend to diminish the deeper victims progress into the criminal justice system, as victims needs increasingly come into conflict with organisational imperatives…. Poor communication and the resultant of a sense of injustice appeared to impede on victim recovery and undermine their belief in the criminal justice system.”

While Dr Ní Shúileabháin’s experience is shocking and the institutional response should be condemned, this isn’t a small oversight at one higher education institution. This is a systemic problem with how Irish institutions and the criminal justice system have superficially normalized consent to the detriment of victims. The superficial normalization of consent, within the Irish context, tends to establish theoretical policies of protection and no-tolerance in an ode to believing victims. However, this does not negate the responsibility to guarantee the policies are performing in practice to the benefit of victims. The emergence of these theoretical policies striving to understand the ethos of consent are assumed to be genuine, but, yet again, it is not enough for victims. It is simply not a matter of accepting the concept of consent anymore. As a society we are leaning into this sentiment, but we must not rest on reaching the first milestone. Normalizing consent not only lies within embracing the concept, but developing institutional mechanisms and systems that validate it. Thus, transforming the concept into a tangible norm that victims can depend upon.

How would you cope with cocooning in prison?

4 Sep

This post first appeared in RTÉ Brainstorm. The original article can be found here.

Written by:

Dr. Ian Marder, Maynooth University (@iancriminology)
Dr. Joe Garrihy, Birmingham City University (@joegarrihy1)
Patricia Gilheaney, Inspector of Prisons

Analysis: Imprisonment was an isolating experience before COVID-19. Those who were cocooned in prison experienced isolation at another level.

I surprise myself I have become so depressed since being cocooned: I feel that I am isolated and solitary. I am also surprised that I am unable to lift myself out of this depression. There is only a few times in my life when I felt suicidal and this is one of them.” – a person cocooning in an Irish prison during COVID-19

In March, the Irish Government advised everyone aged 70 or above, and everyone with underlying health conditions, to ‘cocoon’. This meant that they should stay at home and avoid contact with others. This was a protective measure: these groups were most at risk of dying from COVID-19, so their isolation aimed to prevent them from catching it in the first place.

As this advice is relaxed, we are starting to learn about the impact of cocooning. A report published in July found a growth in suicidal ideation, negative emotions and depressive symptoms among older people, as the isolation negatively affected their mental and physical health.

Today, we publish a report on the impact of cocooning on people in prison. This is the product of a ground-breaking collaboration between the Office of the Inspector of Prisons and criminological researchers. We wanted to listen to people cocooning in prison and establish how to minimise the harm they experienced. Initially, around 100 persons were cocooned in Irish prisons. With the assistance of Red Cross volunteers, we provided 86 people with journals to document anonymously their experiences. Two weeks later, we received 49 journals containing writing or drawing.

The success in preventing a single confirmed case of COVID-19 among people in custody is a credit to the Irish Prison Service (IPS) and prison staff. Many of those who returned the journals recognised this success, and appreciated that the provisions were in place for their protection. Many journals commended the IPS for communicating regularly through newsletters. Others eagerly awaited the introduction of video visits, which all prisons rolled out shortly thereafter.

At the same time, the despair expressed across the journals made for grim reading. Many experiencing cocooning as dehumanising, depressing and debilitating. People in prison often suffer from poor mental health and mental illnesses. These problems were aggravated by acute feelings of uncertainty, isolation and boredom. Likewise, as on the outside, some suffered severe physical pain as medical procedures were delayed. One person with mental and physical illnesses wrote: “All you are left with when the door bangs out is your thoughts and my head drives me fucken (sic) crazy”.

For many cocooners, their experience depended on their relationship with staff. Humans are social beings, and relationships between staff and prisoners are at the heart of prison life. For some, staff provided their only human contact, increasing the significance of interactions. As one person commented: “for anybody outside who knows how it feels to be cocooned for so long, a smiley face means a lot”.

The journals highlighted both the benefits of consistent communication and respectful staff relationships, and the damaging effects of uncertainty and disrespectful treatment. Some experienced cocooning as a punishment on top of their imprisonment, as akin to solitary confinement. Others felt dehumanised when spoken to only through their door, rather than face-to-face and at a safe distance.

As lockdown demonstrated, the minutiae of everyday life takes on greater importance when our liberties are restricted. Many of us sought to sustain our mental health and pass the time constructively by enjoying the weather, taking up new hobbies, learning languages or exercising. In prisons, however, some reported being locked in their cells for 30 hours straight, interspersed with an hour on the yard.

Despite efforts by the IPS to provide purposeful activities, schools and workshops ceased in many prisons. “There are only so many word searches you can do”, lamented a bored person in one journal. Meanwhile, people cocooning were served food in cardboard boxes, without choices in their portions. The depletion of flour stocks was testament to the importance of food during lockdown. For people cocooning in prison, however, their food often compounded, rather than alleviated, their low mood.

Criminologists never tire of stating that society sends people to prison as punishment, not for punishment. In other words, the deprivation of liberty is the sanction. We know that the most effective prison systems are also the most humane and dignified. For example, Norwegian prisons apply the principle of normality: residents are still full citizens, and everyday life is as similar to community life as possible. Ireland has an opportunity to develop a prison environment that is dignified for staff and residents, and give people the best chance of improving their lives on release.

All of us faced unprecedented restrictions to our liberty because of the public health restrictions. The full impact of this confinement and social isolation – especially for the elderly, those with mental health issues, and other vulnerable groups – will be felt for years to come. All public services should consult with those for whom they are responsible to learn from their experience of the lockdown, identify their needs and determine how best to transition their service into a ‘new normal’.

Call for Papers – Special Issue Punishment & Society – Legacies of Empire

11 Jun

Punishment & Society Special Issue – Legacies of Empire

Call for Papers

Submissions are sought for a special issue of Punishment & Society (‘Call for Papers – Punishment and Society – Legacies of Empire’). The special issue will examine the global legacy of empire and colonialism through its effects on the penal regimes and practices of former colonies. Submissions are sought which explore the historical patterns of penal journeys as well as the contemporary legacy of many of these phenomena, including the aftermath of colonial policies on Indigenous communities. Contributions are sought from history, sociology, law, and criminology, capturing interdisciplinary work in which the concept of ‘empire’ is broadly conceived, and which contribute to the field of punishment and society (e.g. through literature, theory, empirical material).

Author Information
Abstracts of 500 words should be sent to the guest editors (email below). Submissions are received on a competitive basis and will be reviewed by the guest editors. A selection will be accepted and the full manuscript subject to peer review (deadline for submission of final manuscript TBC with contributors at a later date).
We particularly welcome submissions from scholars based in the Global South.
Abstracts should be sent to the guest editors by 15th August 2020.

For more details and to submit abstracts, please email the guest editors:

  • Lizzie Seal (University of Sussex, UK) – e.c.seal@sussex.ac.uk
  • Bharat Malkani (Cardiff University, UK) – malkanib@cardiff.ac.uk
  • Lynsey Black (Maynooth University, Ireland) – lynsey.black@mu.ie
  • Florence Seemungal (University of the West Indies Open Campus, Trinidad and Tobago) – florence.seemungal@open.uwi.edu
  • Roger Ball (University of Sussex, UK) – r.g.ball@sussex.ac.uk

MA in Comparative Criminology & Criminal Justice

1 Feb

Maynooth University are now accepting applications for the MA in Comparative Criminology and Criminal Justice.

This programme aims to give students the opportunity to develop a specialist knowledge of debates around crime causation and control within a comparative and international context. Modules include: comparative criminology, research methods in criminology, penal policy, youth justice, international criminal law and international human rights. Students may also apply for a range of placements with criminal justice organisations/NGOs.

For more information see here. Closing date June 2019.