Penal populism has broken Britain’s prisons

Lazy “tough on crime” rhetoric has led to a crisis of overcrowding.

We have a prison capacity crisis. But for emergency measures taken in the autumn, demand for places would have already exceeded supply. Even with these emergency measures, Ministry of Justice forecasts show capacity being breached in spring 2026. In that context, the MoJ commissioned an Independent Sentencing Review, which I chair, to address the crisis.

We will set out our recommendations in the spring, but before doing so, it is important to understand how we got here. An interim report, published on 18 February, sets out the reasons why our prison population has grown so dramatically – effectively doubling in the last 30 years – and why it is forecast to continue to rise.

One explanation stands out above all others. Sentencing policy has become more punitive as political parties have competed to lengthen prison sentences. The last three decades have been an era of penal populism.

Announcements of longer sentences have been made, often in response to high-profile cases (such as murder cases involving firearms and knives). Such announcements might have a direct effect on a relatively small number of cases. But by making a piecemeal reform, an anomaly is created in which two very similar crimes are treated very differently. This, in turn, results in pressure to increase sentences in a wider set of circumstances – pressure that has often been seen as irresistible.

On other occasions, political parties have sought to create dividing lines with their opponents, such as Boris Johnson’s move to delay the release date for some offenders from halfway through their overall sentence to two thirds. Little consideration was given to implementing a plan to expand prison capacity accordingly.

This has happened in the context of crime falling consistently since the mid 1990s. An irony of the “tough on crime” rhetoric is that it has done nothing to reassure the public of progress. Whereas sentences have increased and crime has fallen, polls suggest that most voters think that the opposite has happened.

Some will argue that it is longer sentences that have produced the fall in crime but there is no evidence to suggest a causal link. In recent years, we have seen significant falls in the prison populations of places as diverse as the Netherlands, Spain and Texas, while at the same time crime in these jurisdictions has fallen. Even within England and Wales, youth crime has fallen in the last ten years in a period where we have seen a 65 per cent reduction in youth custody numbers.

This is not to say that punishment is not an important part of the criminal justice system. Society is entitled to express its revulsion over criminal behaviour and expect offenders to be punished. Our problem is that as a society we have come to believe that the only purpose of sentencing policy is to punish, and that the only form of punishment that counts is prison.

Both assumptions need to be challenged. The review will set out recommendations on alternatives to custody, including how technology can play a bigger role in protecting the public. More fundamentally, we have to ask ourselves about whether sentencing policy can be more focused on reducing crime.

There are times when too great a focus on punishment creates a direct tension with reducing crime. Short custodial sentences, for example, result in higher reoffending rates than do community sentences. The UK has made good progress in reducing the use of short sentences in recent years but we should be able to make further progress, even if the contribution to controlling the prison population will be only a few hundred. A similar issue relates to offenders who have been released from prison on licence but are recalled for 14 or 28 days, often for a relatively minor breach of their conditions. Quite right too, some will say, but too often this sanction is used inflexibly and puts back any progress in rehabilitation.

The more fundamental issue is the indirect effect of increasing the prison population by lengthening prison sentences in terms of the opportunity cost. Our enthusiasm for longer sentences does not come cheap. Simply building the prison places that we need on current projections will cost something in the order of £10bn; and the average annual cost of a prison place is £51,000. A pound spent on coping with a large and growing prison population is a pound that cannot be spent elsewhere.

Our probation system is under great strain; drug, alcohol and mental health treatments could be more widely used; there is encouraging evidence that problem-solving courts are effective in rehabilitating offenders but we have very few of them. Relatively small sums of money (compared to the prison budget) could do much more to reduce reoffending.

There is a clear opportunity to allocate resources much more effectively in reducing crime – and reducing the number of victims of crime – while making long-term savings in the budget for the hard-pressed taxpayer. This, however, will only be possible if we can resist the calls to increase sentences as a knee-jerk response to court short-term popularity.

It will be the responsibility of the review to set out measures to prevent the demand for prison places exceeding supply, a matter that will be acute within months. But we need something more fundamental than that. We need a more profound reset: a change of culture. The penal populism of the last 30 years is not sustainable.