Burnham’s prisoner release review is all show

In the face of growing public and political discontent, Burnham has decided to ‘pause’ the Government’s early prisoner release scheme. The scheme, which was due to start in September, would have made thousands of prisoners in England and Wales eligible for earlier release.

How and why is this happening? When someone receives a prison sentence, it is usually a standard determinate sentence. This is a sentence with a fixed period, divided between time spent in prison followed by a period on licence in the community under the supervision of the probation service. For the past twenty years, convicts have typically served fifty per cent of their sentence in prison, followed by a period on licence.

During that same period, prison building has not kept pace with demand, as governments of all stripes failed to invest in the construction of new facilities. The predictable consequence of this is that England’s prisons are almost full. When Keir Starmer came to power in 2024, one of the first crises his government was confronted by was a lack of prison capacity, exacerbated by Starmer’s decision to order the mass arrest and detention of rioters following the Southport murders that summer.

Faced with a prison system operating at 99% capacity, Starmer oversaw the emergency release of several thousand prisoners, while reducing standard determinate sentence time in prison from fifty to forty per cent. 56,323 prisoners were released early between the policy being introduced in September 2024 and December 2025.

However, this measure was only conceived as temporary. Under the government’s Sentencing Act 2026, offenders would have their time in prison reduced further to thirty-three per cent of their sentence. And people convicted for violent or sexual crimes would have their prison sentences reduced from sixty-six to fifty per cent.

These changes, which recently came into effect, have prompted the backlash that Andy Burnham now faces. The public are rightly outraged that people convicted of heinous crimes, such as the killers of PC Andrew Harper, rapists who assaulted young women, and even members of grooming gangs, may become eligible for early release.

But Burnham’s ‘pause’ doesn’t fix any of the underlying constraints. As David Lammy, the outgoing Justice Secretary, admitted, scrapping early release could leave prisons in England and Wales with no capacity and possibly lead to the collapse of the wider criminal justice system.

The Ministry of Justice has admitted that the early release measures in the Sentencing Act are essential for managing prison capacity. In their Annual Statement on Prison Capacity, officials suggested that prison demand will start to exceed supply from this year. On the higher end of their estimates, even the Sentencing Act changes would not create enough prison space.

The PM and ministers will try to amend the rules to ensure that people serving time for the most violent and publicly explosive crimes are exempt from early release. But implementing this is very difficult. Early release measures are based on an assessment of the specific crime an offender is currently serving time for. This overlooks any previous history of offences a person may have. So, if someone is serving a sentence for a non-violent crime such as drug possession but has a known history of violent or abusive behaviour, they are still likely to be released.

But more importantly, tinkering with early release measures makes a mockery of our understanding of justice. Prison sentences are becoming less about ensuring an appropriate level of punishment for a particular crime, and more about managing prison supply and demand. People are justifiably outraged, and the prisons crisis seriously damages public confidence in the state’s ability to deliver the basic functions of criminal justice.

This also has a corrosive effect on the wider system. Sentencing policy is naturally affected by a lack of prison spaces. The police will also take operational cues when deciding what to investigate and who to arrest when they know that prison space is lacking.

Even for those who believe that Britain should be using more non-custodial options for punishing or rehabilitating criminals, inadequate prison capacity means a lack of deterrent. Criminal Behaviour Orders and other measures still rely on the threat of a prison sentence as the ultimate consequence for violating the conditions of an order.

Burnham is in a bind. Saying he will prevent early releases for serious criminals is all well and good and makes for a popular headline, but this unavoidably means fewer spaces for other incoming criminals who also deserve incarceration.

The best course of action is to build. While this takes time and money, it is the only durable way out of the crisis. Starting with lower-risk category D prisons would be the fastest and cheapest way to create spaces. In the meantime, recategorising prisoners to make use of what little supply remains in the system, while undesirable, would be preferable to early release.

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Alex Baker is a Senior Researcher at the Prosperity Institute.

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