While overcrowded prisons have long been a staple of the UK justice system, the issue has reached a critical juncture. As of 2024, almost all of UK prisons are operating beyond their intended capacity. National chair of the Prison Officers Association, Mark Fairhurst, even noted that by the end of July, ‘prisons will be full’ (1). As of July 5, England and Wales had 87,453 prisoners. Prison governors have noted maximum capacity as 88,864. Capacity is at a breaking point.
Overcrowded prisons not only strain resources but also compromise the safety and rehabilitation of inmates. Addressing overcrowding effectively could lead to a more efficient justice system and a reduction in recidivism.
The Sunak government implemented some emergency measures, with certain prisoners being released 10 weeks early. Sunak deemed any radical changes to the rules as being ‘politically toxic’ and believed that the situation could be managed within the existing system (2). However, the persistent overcrowding in prisons has revealed this policy as inadequate. Starmer has since criticised this approach, labelling it a “Total failure of the last government…” (3).
In the wake of the government handover to Keir Starmers leadership in July 2024, a more radical policy for managing prison overcrowding has been proposed. In the coming months, Starmer has announced that the government is preparing to release inmates early in a bid to ease overcrowding (4). Specifically, the policy shift will target those who have served 40% of their determinate sentence, compared to the current threshold of 50% (5). Although this policy is said to exclude serious violent offenders, it is not clear what the exact parameters of these exclusions are – who exactly qualifies as a non-serious offender?
This move is expected to result in 5,500 offenders being released in September and October 2024, and thousands more after that (6). Additionally, in a project known as Operation Early Dawn, Starmer will also utilise police cells to house new offenders until a space in prison is available. This additional measure has been implemented in response to the recent nationwide riots. Riot arrests have intensified pressure on the already overflowing prisons.
Labours early release policy aims to alleviate immediate pressure on the prison system. However, it raises critical concerns. Whilst the policy might offer temporary relief, it does not consider how early releases do not set up inmates properly, and can often lead to high levels of recidivism.
Additionally, decisions regarding prisoner release must not be perceived as merely a means to free up prison space. Maintaining public confidence in the justice system is paramount. There is a risk that Starmers administration might appear to prioritise logistical concerns over safety and justice, potentially undermining public trust in the system.
Even overlooking ethical concerns, this new policy is a short-term fix and is unsustainable. It does nothing to tackle the underlying issues. The causes of the current overcrowding crisis can be traced back to two primary factors. Notably, COVID-19 has caused a backlog in prison sentencing in the last few years. Yet, more significantly, the justice system has seen a trend towards longer and stricter sentences. As proven by research from the Sentencing Academy, sentences for indictable and triable crimes have become significantly more severe over the past 20 years (7). New prisons minister, James Timpson, has criticised this country’s so-called ‘addiction to punishment’. The justice system has a reliance on punitive measures rather than rehabilitative or diversionary approaches. As argued by Penal Reform International, incarceration should not be seen as the default (8). It should only be used when proportionate to the offence committed, and when no other appropriate options are available. Alternative punishment options need to be considered more seriously.
Proposed policies
In light of this information, this article proposes three main policies.
Minor offences need to be contextualised and frequently diverted away from prison sentences. They cannot be processed in the same way as major offences. Effective diversion programs in countries like Norway and the Netherlands include warnings, mediation and community-based sentences. The Penal Reform International has even found that non-custodial sentencing has proven to be particularly effective for female offenders (9). The UK currently implements this approach to an extent, but policies need to be established to ensure it is more strongly emphasised.
In a similar vein, steps need to be taken to ensure consistent sentencing practices. Sentences need to be adjusted and reduced for non-violent offences or for crimes which are closely related to the individuals economic and social disadvantage in society. This would again involve prioritising alternative sentencing options such as community service or probation. This approach would help reduce the reliance on incarceration as an option, and hence reduce the prison problem.
In line with Norways policy, the UK should consider introducing a formal queuing system for custodial sentences. Rather than utilising needed police cells, as proposed by Operation Early Dawn, low-risk prisoners could instead start their sentence on house arrest. This time would count towards their sentence. This option has been advocated by JUSTICE earlier this year. Given the crisis, this policy cannot be used alone since there would be a time lag between legislation being drafted and a system being put into place (10).
These policies are also proposed in the context of the tightening justice system budget moving forward. According to the Institute of Government (IfG) Think Tank, spending on prisons is set to fall by 5.9% each year relative to demand over the coming years.
Policies in conjecture
Admittedly, these policies do not alone deal with the current crisis. An early-release policy is not inherently disagreeable. However, a more tailored approach that considers risk factors and individual circumstances would be more effective in managing the prison population without eroding public safety and perception of the incarceration system. Over time, however, incarceration should no longer be utilised as the default option for punishment. More research into how, when and which alternative approaches should be enacted would be helpful.
Without addressing the underlying causes of overcrowding and implementing comprehensive sentencing reforms, the issue of overcrowded prisons will persist despite early release efforts. This will continue to undermine the effectiveness and trust in the UK criminal justice system. Consequently, reforming minor offence handling and ensuring consistent sentencing practices are critical.
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Josie was our Justice Spokesperson and now works at Legal 500 as a Researcher. She holds a History degree from Durham University, worked as an editor and writer for a university magazine, and studied illegal immigration as as a legal research assistant.
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