The UK may have a new prime minister, but the problem of prison overcrowding in England and Wales remains. Andy Burnham recently clarified the details of the Sentencing Act 2026, which aims to release prisoners earlier than usual.
Like other PMs before him, Burnham faces a difficult choice between addressing the overcrowded and chaotic prison environment, and reassuring the rightfully distressed victims and their families.
The prison estate in England and Wales is vastly overcrowded. The most recent data shows a population of 86,495 prisoners – the estate can safely hold 81,681. The population increase has been building since the late 1990s. It reduced slightly during the pandemic, but has grown every year since 2023 back to pre-pandemic levels. This has been attributed to increases in sentencing lengths and the creation of new offences as a result of specific concerns or public campaigns.
The harm caused by overcrowding is profound and pronounced. Violence, self-harm and suicide are still significantly high in prisons, with 70,632 self-harm incidents, 30,820 assaults between prisoners and 9,833 assaults on staff in the last year.
With no clear plan to manage how sentence lengths have increased over the years, and only some efforts to mitigate the use of prison as a punishment, for example, by suspending sentences of less than 12 months, one apparently easy option becomes to release prisoners early.
2024 early release scheme
In one of his first acts as prime minister in July 2024, Keir Starmer’s government announced an early release scheme, triggered by fears of prisons running out of room. Police custody suites were being used instead of prison cells, and there were discussions of renting foreign cells for the incarceration of prisoners.
The scheme replaced one launched by the previous government in October 2023, which originally released prisoners 18 days early.
The new scheme allowed certain prisoners to be released at the 40% point of their sentence, resulting in 38,042 prisoners released by June 30 2025. These prisoners would have ordinarily been released after serving 50% of their sentence. This scheme excluded violent offenders serving sentences of four years or more, sex offences and those serving sentences for domestic abuse.
Interestingly, most of the prisoners released under this scheme were serving sentences of less than 12 months.
After these prisoners were released, no major effort was made to consider longer-term alternatives. The overcrowding continued, rising again significantly to become Burnham’s problem.
Sentencing Act 2026
Enter: the Sentencing Act 2026, which was passed under Starmer’s government. Under the act, prisoners serving fixed, determinate sentences will be released as early as one-third of the way through their sentence. Those who are released early will be subject to monitoring and surveillance, with much higher community measures – and likely shifting the pressure on to the probation service.
These changes were due to come into force this September. But Burnham paused the policy for review after public backlash, including from the family of PC Andrew Harper, a Thames Valley Police officer who was killed in 2019 when he was dragged by a car down a country road. Two of his killers, passengers in the vehicle at the time of his death, would be eligible for early release in June 2027.
Burnham has now made clear that the changes in the Sentencing Act will not apply to those guilty of rape, serious child sex and other grooming offences. Previously, exclusions were based on the length of sentence, rather than type of offence.
This means that around 5,000 prisoners will be released from October, rather than the expected 6,000. Domestic abusers and those who have been charged with manslaughter will, however, be eligible for early release.
Burnham has acknowledged the difficult balance, saying: “I wanted to go even further … it’s not possible without the prison reaching capacity and collapsing”.
There is no doubt that victims and their families need to be considered, all of whom have suffered from harrowing experiences at the hands of offenders. However, this crisis offers Burnham an opportunity to make real changes to how people are sentenced and incarcerated in England and Wales.
There is minimal evidence that the use of prison supports rehabilitation, reduces reoffending or deters crime. In England and Wales, there is an overall reoffending rate of 43.8% for adults released from prison.
These early releases are serving as a stopgap to help an overwhelmed prison service. But even if successful, they will not prevent overcrowding in the future. Decisive action needs to be taken to address sentence inflation, fund community services that offer far better rehabilitation, and do more to address the causes of crime.
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