I move:—
That in the opinion of Seanad Eireann the Government should consider the question of introducing legislation to abolish capital punishment or to suspend it for an experimental period.
The Seanad and the Minister will, no doubt, have noticed that this motion is phrased in very moderate terms. There is no desire to coerce the Government or dictate any policy. We have phrased it simply to request them to consider what we think is becoming an urgent matter. This moderation is partly due, I think, to our desire to have no high feeling, or emotionalism, or lurid details, in our debate this evening. It is also, for my own part, due to the fact that I realise that the arguments in favour of retaining capital punishment are strong. I think it is a fairly close balance between the arguments for and against, but, after very careful consideration, I came to the conclusion that the balance of argument was in favour of modification or abolition of the death penalty. I also found that a good many citizens of this country, people whose opinions I respect, had the same view. Because I respect the arguments in favour of capital punishment, I am going to try to deal with, or, at least, to discuss, those arguments first.
I personally am inclined to be a conservative. I think the majority of the people in this country also are inclined to be conservative, and I like it. We are inclined to say: "If this thing has been good enough for our ancestors for countless generations, why should we make a change now?" We are also inclined to ask why, if many nations throughout the world to-day believe that capital punishment is necessary for murder and for some other crimes, should we think that they are wrong. This argument from what I will call established custom is strong in the minds of many of us. In Ireland, we are cautious about making what might be called doctrinaire changes.
But I should like the Seanad to consider this argument from established custom a little more closely. In fact, if we go back before the Norman conquest in this country, we find that capital punishment was very much modified. I refer to the provisions of the Brehon Laws.
I have consulted a person who, I think we would all agree, is the highest authority in the world on the Brehon Laws. He tells me that, before the Normans came to Ireland, capital punishment was rare. It was almost entirely confined to offences against the king, the local king or the chieftain. Ordinary cases of homicide were atoned for by payment of a fine to the slain man's kindred, and this was to prevent a kin fight or a private war. Later, for a while, under the influence of the Normans in the early days of the kings the Irish chieftains levied the fine for themselves, and kept it for themselves. But on the whole capital punishment was comparatively rare in Ireland before the Normans came. Similarly, though this argument will not weigh so much with us, in Anglo-Saxon England before the Normans came, capital punishment was comparatively rare.
In fact, the rigorous law of capital punishment which we know in this country, and knew very much more rigorously 150 years ago, is essentially a Norman and a British introduction. Under British laws, as a matter of fact, as is well known to many here, I am sure, capital punishment was also exacted for larceny and many other felonies. That has been abolished within the last 150 years. There have been changes in the law. The law is not immutable in this country, and capital punishment, as we know it, is not a native Irish institution.
As another example of the mutability of the law, the House will remember that hanging, drawing and quartering was valid in England until 1824. Slavery was legal and permissible until about 1770. Public opinion changed that. I am making the point that the law of capital punishment in this country is neither historical nor immutable. It was brought here chiefly by the Normans and it has changed considerably in the last century.
The Minister may have in mind another argument, the argument that in many countries of the world capital punishment is still considered necessary. When we say "many countries of the world", we must remember that it has been abolished, and abolished with success, in many civilised countries of the world. Before the 1939 war—after it, there were some changes under the dictatorships, for obvious reasons—capital punish ment had been abolished in 13 countries in Europe, eight countries in South America and six States of the United States of America. It has been restored in some States of America as a necessary dettrent. I shall meet the implications of that later, but the fact remains that in 27 civilised States it is considered unnecessary to have capital punishment.
We have seen that our neighbour, England, is about to abolish capital punishment for most kinds of murder. That will bring certain practical difficulties in this country. England is going to join the large number of countries which think capital punishment is not necessary in its present rigour. So the argument from history is not valid. Capital punishment is not based on the law in this country from the earliest date. And it is not the law in many countries in Europe and the rest of the world to-day. That removes the argument which so many of us may feel in our conservative hearts—the argument that what was good enough for our ancestors is good enough for us.
I turn from these theoretical arguments to the practical arguments for and against capital punishment in Ireland to-day. What are the main practical reasons given in favour of capital punishment? Why do a great many people say that we should retain it? There are three main practical reasons. First, many of us think of the old adage: an eye for an eye and a tooth for a tooth. I have heard this point argued very strongly. It is the argument that death is the appropriate punishment for death. I feel that we could argue this endlessly. I can only give my own view on it, and, if Senators raise arguments in favour of that, I will try to reply to them. My own view is that, in terms of absolute morality, it is as wrong for the State deliberately to kill a man as for the individual deliberately to kill a man.
I put that bluntly and I mean it. If we really agree that the terrible finality of capital punishment is such that only God Almighty should exercise it, we will take that view. Expediency may confine us to turn that argument aside, but I repeat that ultimately, in my opinion, it is in terms of absolute morality, as wrong for the State to kill a man as for a man to kill. I know that there is endless controversy on that point and I will not pursue it further. I could try to submit further arguments at considerable length, but I will not do so.
The second argument in favour of retaining certain punishments is that they help towards the reformation of the criminal. That hardly arises in the case of capital punishment and we need not pursue it. A dead man is not capable of reformation. On the other hand, if we abolish capital punishment, or modify it, we are giving the criminal an opportunity of prolonged reformation to the full extent of his life.
The third argument is the really strong one. It is that capital punishment is an effective deterrent and preventive measure. Obviously, if a man is hanged for killing, he will not repeat his offence. What many people really stand on is this, that capital punishment is necessary as a deterrent to other potential murderers. That is the strongest argument. If that argument holds, the case for abolition fails and the case for modification is weakened. If the death penalty was removed by the Irish Government to-morrow, some people would argue that murderers would become more frequent in Ireland as a result. I have heard the views of many responsible people who have thought this argument decisive— judges, police officers and prison warders.
In my opinion, it is a very weighty argument if a policeman or a prison warder says: "If you cease to hang murderers, our work will become very much more dangerous. Criminals will kill us far more readily when they know that the worst they can suffer is an increased period of imprisonment." If this were a certain fact, I would not be pleading my case here this evening. If I were convinced that that was beyond aye or nay, I would be in favour of retaining capital punishment. But is it a certain fact? Is it anything more than a fear? It certainly has not been proved by any statistics from countries where capital punishment has been abolished that murders have increased as a result of its abolition.
On the other hand, policemen and prison warders have often been attacked and killed by criminals in countries where there is capital punishment. It is certainly, therefore, not an absolute deterrent. The facts, and I have read all the available statistics and literature on this subject, show that capital punishment is not a complete deterrent. The Department of Justice has kindly provided me with some figures on capital punishment in this country since 1922. They show that since 1st April, 1922, 89 people were sentenced to death in the Irish courts; that is nearly three people a year who were not deterred by capital punishment. Though the death penalty is there, still murders happen. And there may be other murderers who escape detection. It is not an absolute deterrent. History shows that even the most terrible punishments and the most terrible threats of punishment have never been absolute deterrents. Burning, torture, hanging, drawing and quartering have failed to deter people who felt they should commit certain offences. In the last 160 years of the history of Ireland dozens of people have been undeterred by such penalties —among them, I am glad to say, three graduates of Trinity College, Dublin, who were undeterred by hanging, drawing and quartering, undeterred from serving their country as they thought right.
It is not an absolute deterrent. Even what appears to be the most efficacious penalty will never be an absolute deterrent. In fact—and I hope the Seanad will not consider this an oversubtle argument: I think it is a valid one—from a psychological point of view it is arguable that the murderer who plans in advance will assume success in escaping detection, while the passionate murderer will not consider the probability of a penalty at all. So I question whether either in the case of the long-scheming murderer or the passionate murderer capital punishment is a particularly strong deterrent. Neither the murderer who lays careful plans nor the man who strikes in anger will think or believe that he will face the gallows.
Now, in these remarks I have tried to face the main arguments in favour of retaining capital punishment. I have tried to show that they are not decisive, not even the argument that our police, our prison warders, and others, may suffer if hanging is removed. I turn now to the positive side of my case, the arguments for abolition or modification of the present law. Out of very many possible arguments, I select four which weigh most heavily with me. The first is on the ground of common humanity. It is not really an argument. It is an appeal, but I think a valid appeal. I think all of us have the utmost reluctance to approve of the killing of a fellow man even when it is by a judicial decision. On the grounds of common humanity, we shrink from death in almost any circumstances. This kind of consideration may, I hope, influence some. Others may think it is not an argument at all. I shall not dwell on it.
The second argument is the fact, as I have already mentioned, that many civilised countries to-day get on perfectly well without capital punishment. I could give a list of them. They are given in this Royal Commission on Capital Punishment, 1949 to 1953. They are countries whose opinion is worth considering. The third argument is the possibility of a mistaken verdict by juries. I shall refer to that in a moment. The fourth argument, and this is strongly against retaining capital punishment, is the effect of executions on all those concerned with executions. Some of these effects will be made worse, I suggest, if the Republic is isolated by a change in the law of Great Britain and Northern Ireland.
On the first argument, as to the possibility of a mistake by the police and by the courts, there are cases on record where convicted murderers have subsequently been proved, or virtually proved, innocent. It is difficult—in fact I think it is impossible—to get any Government or any Minister for Justice to admit a mistake of this kind. That is quite understandable. I am not suggesting for a moment that any mistake of this kind has been made in Ireland since 1922. But, in England, there are certain cases that have caused grave public disquiet.
There was the case of Timothy Evans about six years ago; very many people believe that he was innocent. There was the case of the famous Oscar Slater. He was sentenced to hang in May, 1909. The sentence was commuted to life imprisonment. Then the Irish author, Conan Doyle, took up his case. After a long campaign he was proved, 19 years later, to be innocent of the crime and the sentence was annulled. If that man had not been reprieved, he would have been hanged, though innocent.
Many people have shown, with considerable reasonableness, the risk of error in identifying a criminal. We have often seen the disagreement of expert witnesses in the court. For example, in 1925 Norman Thorne had three medical witnesses who swore that death, as described by the prosecution, was impossible. He was hanged. In 1953, another person was hanged, despite the evidence of a former chief pathologist for the police. He was on her side and he said that she was innocent on pathological grounds. She was hanged. Far back in 1865, but I think the quotation is valid, Sir Fitzroy Kelly, a former attorney-general, said before a Royal Commission sitting then that "formidable numbers of innocent men have been executed." Formidable numbers of innocent men have been executed: that may be an exaggeration, but if two or three innocent men have been executed in the last 50 years and if two or three innocent men will be executed in the next 50 years it seems to me one of the gravest reasons for abolishing or modifying the death penalty.
The fourth argument to which I attach considerable importance is the argument stemming from the effect on others—on the people involved in the verdict and execution. The effect on the jury is in a curious way two-fold. On the one hand, one quite often finds a reluctance to return a verdict of murder. A guilty man may therefore escape because of the death penalty. I quote from a book by Gerald Gardiner, a Queen's Counsel, entitled: "Capital Punishment as a Deterrent." He is a partisan. I think I should state that; but his opinion is worth considering. He says:—
"The only way to stop verdicts of manslaughter which should be murder, to stop juries sending sane men to Broadmoor and to increase the conviction rate to the level which the facts justify is to abolish capital punishment."
That is one effect on juries. The other is the terrible psychological strain on any jury which has to consider a murder verdict. I shall not dwell on this. It is clear to all—some here may have served on murder trials. This terrible psychological strain is not, indeed, something that should be shirked if it is absolutely necessary and desirable. But I think it is not absolutely necessary and desirable.
I shall not dwell either on the argument of ad hominem or ad ministrum, but I think we must also take into account the appalling strain there must be on the Minister for Justice and his Department when he has to consider whether or not a criminal should be reprieved. I am not going to dwell on this. One can easily imagine the awful strain it must be on any man in that case. The fact is, as I have stated, that there have been 89 people sentenced to death since 1922 and of these 48 were reprieved and 35 were executed. That means on 35 occasions the Minister had to exercise the terrible responsibility of sending a human being to the gallows. I am sure no Minister wants to shirk his duty in that regard. But is it necessary?
There is again the strain on the prison staff and on the other convicts in the prison. We have all probably read lurid details. I hope during this debate nobody will dwell on lurid details of this nature. But we all know that the strain on the prison staffs and the other convicts in the prison is of terrible magnitude. There is also the strain on the executioner. I would like to emphasise that I hope nobody will go into lurid details. But at the same time we must consider all the facts.
There is also the effect of executions on the public. I do not think that this is as bad in Ireland as it is in some countries, to judge from the publicity given to them in some newspapers there. But even in Ireland I think there is some risk of morbid and unhealthy interest, stimulated by disreputable newspapers. If eventually Ireland becomes the only country in West Europe which has the death penalty, apart from France, the spot-lights of the sensational newspapers will be turned on any executions in this country with tenfold strength. They will not have anything of that type in their own country, if the death penalty is abolished there, and I am quite sure that they would then give full publicity to executions in this country.
I would go further and say that in a few pathological cases criminals are attracted to kill by the publicity and the celebrity that they see other murderers enjoying on their execution day. I think this could occur in not more than one in 1,000 or one in 10,000 cases. But it could be an influence in some of those cases.
There are other factors on which I will not dwell now. There are the effects on the condemned man's relatives and the effects on the condemned man himself. Apart from the actual execution, the criminal is given no length of time for amendment of life; no long time for a gradual reformation.
I think there is enough in what I have said, and there are other arguments, to justify our request that the Government should consider the present arguments for and against capital punishment. Probably other speakers will raise other arguments. Before concluding I would like to refer to one grave practical difficulty which the Minister and his Department have in mind. That is the question of what would happen if capital punishment is abolished. The alternative would appear to be a sterner life sentence.
Personally I think that a true life sentence would be in many cases a more cruel punishment than execution. I personally hope there will be no consideration of a life sentence for the whole of a life. It does seem to me, and to many of those who have written on the subject, that a sentence of 20 years, with power to imprison for life in certain circumstances, would meet the case. The criminal would be kept under close observation and would have careful after care when he leaves prison. There is a good deal about this in the report of the Royal Commission on Capital Punishment.
Incidentally, the figures in that report show that out of 156 people reprieved and released from prison in England only one became a murderer again. Only one relapsed, so to speak, out of a total of 156. That is not a high percentage. The percentages elsewhere are lower still.
I should like to add that it was on this report that Sir Edward Gower says he was converted to the abolitionists' point of view. He had been an advocate of capital punishment, but he says that his views were changed as a result of this inquiry. Before the inquiry, he was strongly in favour of capital punishment and now he is strongly against it.
To return to the question of punishment and what would be effective: I think a lengthened sentence of 20 years would constitute a sufficient penalty. If the Minister thinks it would not and if he thinks that in certain circumstances only death is a sufficient penalty, then I would ask him to modify the conditions. I personally would prefer abolition. But at least modification of the present law would go a considerable distance towards what I consider is the right end.
I will sum up now. In my opinion, and I think in the opinion of many others in this country and elsewhere, the death penalty is not necessary nor is it efficient as a deterrent. In my opinion the arguments put forward strongly favour the abolition of the death penalty or at least its modification. The arguments in favour of this are: common humanity; the fact that many civilised countries have already abolished capital punishment without any clear increase in the murder rate; the fact that the death penalty causes grave strain on many of those concerned with the execution and evokes an unhealthy interest and curiosity; the fact that there is a danger of a miscarriage of justice in murder cases, a danger that at some time an innocent man may be hanged.
I propose then that, in the opinion of Seanad Eireann, the Government should consider the question of introducing legislation to abolish capital punishment or to suspend it for an experimental period.