Around 1,750 prisoners in England and Wales were recently released early, the first part of the government’s plan to solve the prison overcrowding crisis.

Politicians, legal professionals and academics all agree that prisons are drastically overcrowded, leading to dangerous and poor conditions. But there has been surprisingly little discussion of the role that sentencing has played in causing this crisis.

In a recent report, the four surviving former lords chief justice of England and Wales have laid out how changes in sentence lengths and aggressive sentencing legislation have increased the prison population. As they write:

Over the half-century that we have been involved in the law, custodial sentence lengths have approximately doubled and the same is true of prison numbers. The connection between the two is obvious.

Their report shows that while crime has fallen since the 1990s, this is not reflected in the prison population, which has doubled in the same period. They attribute this partly to an escalation in sentences for serious offences. Particularly, the introduction of schedule 21 under the last Labour government, which introduced minimum terms for those convicted of murder.

More recently, the Police, Crime, Sentencing and Courts Act 2022 increased the maximum sentence for death by dangerous driving from 14 years to life imprisonment. And other legislation has increased minimum sentences for crimes like firearms offences and domestic burglary.

The average sentence for all crimes rose from 14.5 to 20.9 months (a 44% increase) in just 11 years. However, this inflation is not applied equally. Manslaughter sentence lengths, for example, have risen by 80% between 2008 and 2021, and grievous bodily harm with intent rose 38% in the same time period.

With violence against the person offences making up the largest proportion of the prison population, this sentence inflation has a demonstrable impact on prison capacity.

This inflation has even more significance when considering serious offences. While homicides and violent offences have decreased over the last 30 years, the number of prisoners sentenced to 20 years or more has doubled between 2013 and 2020.

Sentences have been lengthened for a number of reasons, including the influence of emotional cases that attract a lot of media and political attention. Single issue cases, such as knife crime, dangerous driving or attacks on emergency workers are widely condemned by the public, leading to an expectation of tough sentences for those charged.

But the legislative increases in sentence lengths appear to have been implemented without clear consideration of the impact it would have on the prison population. They are also costly – as the authors of the report note, it costs over £50,000 a year to keep someone in prison. The longer the sentence, the higher the cost to the taxpayer.

Sentencing and overcrowding

This brings us to today’s situation – an overcrowded prison system about to be under even more pressure following the hundreds of arrests during far right riots this summer.

Releasing prisoners early is a sticking plaster, and also brings its own challenges. Those serving time for specific violent and serious offences, including domestic abuse, have been excluded from the early release programme. But campaigners have warned these exemptions will not catch everyone, possibly putting domestic violence survivors (and new victims) at risk.

We know that many prisoners are likely to reoffend once released, but not necessarily because they have been released early. The current conditions in prisons, as well as an overwhelmed probation service, mean that prisoners have limited access to education and meaningful work. All of these factors increase the risk of reoffending.

Early release prisoners are leaving an environment with skyrocketing self-harm and suicide rates and violence. Prison staff are unable to offer purposeful activity or rehabilitation activities. These are people who at best have not been able to be rehabilitated, and at worst are traumatised from their experience of imprisonment.

Prisons have not always been this way. The overcrowding of recent years has created this environment, combined with severe restrictions on funding and understaffing, in addition to sentence inflation.

What’s needed now is an overhaul of sentencing lengths and legislation that takes into account the limited prison space.

While the government has clearly recognised the need for prison overhaul, it has not announced clear plans regarding sentencing. The Labour manifesto promised to “review sentencing”, while simultaneously declaring a commitment to continue building prison places as initially declared by the previous Conservative government. It is not possible for both of these to be effective.

It is no longer sustainable to use prison as anything other than punishment for the most serious of violent offenders. Despite a clear decline in many of these offences since the 1990s, the Ministry of Justice predicts a high estimate of 114,800 prisoners by March 2028. Evidently there is a disconnect between the intent of prison as a punishment, and the actual use of it.

As the lords chief justice suggest in their report, sentencing legislation is often reactionary, related to public and political support for more “tough on crime” approaches. But ballooning sentence lengths are not sustainable, and overcrowded prisons do not make society more safe. Until changes have been made to sentencing legislation, there will be no change in the prisons crisis.