Why Burnham should hold his nerve on early release

Andy Burnham’s honeymoon period as Prime Minister has encountered its first serious challenge. Labour’s attempt to ease pressure on England and Wales’s overcrowded prisons through the early release of thousands of offenders has provoked fierce opposition, particularly after it emerged that two of the men convicted of killing PC Andrew Harper could benefit. Burnham has already excluded some more serious offenders from the scheme, but political pressure to go further is growing. Behind the emotionally charged debate is the pervasive policy issue of overcrowded prisons that has confronted successive governments for decades.  

The orthodox response to this issue has been to build more prisons. Both Labour and the Conservatives went into the last election promising additional prison places, while Nigel Farage has responded to the current controversy by proposing emergency ‘Nightingale’ prisons alongside transferring foreign prisoners overseas. All of these approaches stem from the same diagnosis: there is a given level of demand for imprisonment which the existing prison estate cannot accommodate, and so government must increase supply.  

But after three decades of prison expansion, this diagnosis warrants greater scrutiny, especially when we consider that the addition of thousands of prison places over recent decades has coincided with a period in which the prison system in England and Wales has been overcrowded in every single year since 1994. If such an enormous increase in supply has failed to solve the shortage, it becomes incumbent on governments to search for demand-side solutions instead.  

Where did the demand come from?  

The modern prison crisis has its roots in the punitive turn in British politics beginning around 1993, following then Home Secretary Michael Howard’s ‘prison works’ speech. The decades following have seen greater use of immediate custody, longer sentences and increasing recalls, helping to produce a prison population that almost doubled. Motivating this expansion was a developing form of punitive populism, where the major parties became increasingly keen to appear ‘tough on crime’, to tap into what they saw as the consensus view amongst the electorate. Tougher sentencing offered politicians an immediate and highly visible demonstration of their commitment to public safety, while the additional pressure placed on prisons accumulated far more gradually. 

 The failure of subsequent governments has been to respond to the consequences of this punitive turn as though they were an independent supply problem.

This punitive turn cannot even be seen as a response to an increase in serious offending. Between 2005 and 2024, the severity of sentences imposed in England and Wales increased by 62%, while the severity of cases coming before courts increased by just 8%. An estimated 87% of the increase in sentencing severity during this period was attributable to changes in sentencing practice rather than changes in the seriousness of cases coming before court. Mid-1990s, Britain did not discover that it needed vastly more prison places; rather, political and policy choices artificially generated the increased demand for them.  

The failure of subsequent governments has been to respond to the consequences of this punitive turn as though they were an independent supply problem. Rather than taking on the normative burden of assessing the desirability sentencing policies which were unnecessarily inflating demand for prison places, successive governments decided to treat the issue as a purely technocratic matter of deciding how best to increase supply to meet this inflated demand. Repeatedly treating prison overcrowding as a supply-side issue solves the immediate shortage, but leaves its underlying cause untouched.  

This helps explain the otherwise paradoxical fact that tens of thousands of additional prison places have failed to eliminate overcrowding. Governments have increasingly expanded the prison estate without seriously challenging the assumption that the demand placed upon it must be accommodated.  

Breaking the cycle  

This is what makes Labour’s early release policy more significant than the immediate controversy surrounding it. For once, government is attempting to intervene on the demand side of the equation rather than relying exclusively on greater supply. Early release will not by itself solve overcrowding, nor does recognising the need to reduce demand mean that every offender should necessarily spend less time in custody, but it does represent an important departure from the assumption that an ever-growing prison population is something which governments must accommodate.  

The political difficulty Burnham now faces also helps explain why previous governments have found short-term, supply-side solutions so attractive. The costs of sentence inflation are dispersed across thousands of prisoners and emerge over years, at which point a Prisons Minister or indeed Prime Minister is unlikely to still be i

n post to shoulder them. The political costs of releasing an individual offender earlier are immediate and inflammatory.  

As far as possible, Burnham should avoid caving to the same punitive political incentives that have inflated prison demand in the first place. A new Prime Minister has a rare opportunity to spend political capital on changing the direction of policy rather than simply managing the consequences of decisions inherited from the past. Sensible exclusions can be debated, and investment in prison capacity will still be required in the short term, but Labour should preserve the central demand-side logic of its reforms and break the cycle of prison overcrowding.  

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