Two types of criminals?

Brazil’s legal code offers extraordinary protections for the country’s elite. College graduates, who make up only about 11 percent of adults between ages of 25 and 64, obtain special cells if they are sentenced to prison. Political authorities, even if they lack a college degree, get the same privilege. Hundreds of top officials cannot be tried in lower courts at all.

What has that got to do with the Irish Criminal Justice system?

One story about the criminal justice system in Ireland has dominated the headlines today – that is the sentence Justice Paul Carney handed down to Patrick O’Brien for raping his daughter, Fiona Doyle, over the course ten harrowing years of her childhood. While a 12-year custodial sentence was imposed on O'Brien for what the judge described as "one of the most serious cases of serial rape of a daughter”, he still walked free from court as the last nine years of the sentence were suspended.

The sentence has understandably provoked outrage, with some politicians and lobby groups calling for a review of the way sentencing is administered.

The victim was devastated after the verdict.

"He raped me for 10 years and he just walks out of here today. I just can't believe that this has happened," she said.

Devastatingly for Ms Doyle, Mr Justice Carney said in his sentencing that her daughter-raping father was “of good character.”

O’Brien committed the first assault the night before her First Holy Communion.

The judge gave his reasons for the seemingly lenient sentence, saying that if he locked the 72-year-old Mr O’Brien up, he would be branded as “a trial judge who substituted one injustice for another.” I thought that this was the basis of how most Criminal Justice systems work – you do the crime, you serve the time. Not so in Justice Carney’s view. He then suspended the last nine years of the sentence on grounds of ill health, age and remorse.

Contrast these mitigating factors that the judge took into account during his sentencing with Patrick O'Brien, who took no account of his daughter's age, her ill health due to his raping of her, and who obviously showed no remorse while he perpetrated his vile abuse.

Before handing down the sentence, the judge heard evidence from the director of nursing services with the Irish Prison Services, who said that the Prison Service had managed patients with similar health issues as O'Brien and the level of care available to him would be "as good as that in the general community".

Yet the judge still thought that O’Brien’s age and ill health (which his daughter later claimed himself and his legal team had exaggerated) should be a reason not to imprison him.

Today, as part of a series reporting on conditions in Irish Prisons, The Irish Times’ Conor Lally wrote the following piece about the violence contained therein. He opens his piece with the story of Declan O’Reilly, who was shot dead in a drive-by shooting as he walked along the street with his 10-year-old son in September 2012. In my view, the contrasting treatments of Declan O’Reilly and Patrick O’Brien at the hands of the Irish Legal System, are indicative of wider problems within the criminal justice system.

According to newspaper reports, Declan O’Reilly was a fringe member of some of the Crumlin gangs. He was a heroin user too, from a disadvantaged area of Dublin. In any event, during the summer of 2007, he was serving short sentences for Public Order and Road Traffic Offences. That June, he stabbed fellow inmate, Derek Glennon, to death in Mountjoy Prison.

Derek Glennon was an aggressive killer, subject to more than 50 prison discipline reports, and was a gang member in the criminal underworld. He had been jailed for killing a cyclist while driving a stolen car, while he had also once shot a man dead in a Dublin pub because he had apparently been humiliated the night before in a fight in a Chinese takeaway. He also once threatened two prison officers with a sawn-off shotgun during an escape attempt.

According to evidence given by prison officers and Derek O’Reilly in court, Glennon was also a bully in the prison wing – he would use intimidation, including threats to get his associates to harm O’Reilly and other prisoners’ families outside the prison walls. Fellow prisoners were threatened into storing drugs, weapons and mobile phones in their cells for Glennon. Eventually O’Reilly snapped, stabbing Glennon to death on 27 June 2007. The jury at the trial accepted this was a case of self-defence, and acquitted him.

Freedom didn’t come with his acquittal though. Even before Glennon’s funeral, his associates had thrown hand grenades at a house in Crumlin, targeting O’Reilly’s family. In September 2011, just seven months after his plea of self-defence was accepted by a jury at the Central Criminal Court, O’Reilly was shot and wounded in Harold’s Cross, Dublin.

A year later, Derek O’Reilly was shot dead by a gang member on a bicycle, as he walked with his 10-year-old son on the South Circular Road in Dublin.

There is no doubt that innocent people suffered because of O’Reilly’s initial crimes which sent him to prison in the first place. However, the contrast between his fate and that of Patrick O’Brien following their respective crimes is stark.

Remember, two of the reasons why Justice Carney refused to jail O’Brien where because of his age and ill health. Meanwhile, it isn’t clear whether whichever judge jailed O’Reilly took his health or age into account.

O’Reilly was sent away to an environment of constant fear and intimidation from murderous fellow inmates like Glennon. The Irish Prison service is the kind of place where people can get jailed for relatively minor crimes, and come out the other side as heroin addicts – not only heroin addicts, but addicts indebted to criminal suppliers within the system. Rehabilitation? Doesn’t exist – that is, if we consider the findings of the UN Torture Committee’s 2011 report on the Irish Prison System.

So, Ireland is a country were petty criminals are routinely dispatched to institutions where fear, drug addiction and extreme violence are lurking around every corner. That is, if the criminals in question dropped out of school early, come from the wrong side of the tracks and speak with a strong accent, it would seem. No health risk whatsoever is posed to these kinds of people when their locked up.

Meanwhile, if the criminal in question shares the same age-group as the judge, and is deemed to be of “good character”, no matter how heinous his crimes, he can walk free.

Am I wrong to be drawing the conclusion that Ireland has a two-tier justice system? Is it time for Ireland to maybe take a leaf from Brazil’s book, and at least be more honest about how some types of prisoners are more equal than others?