Lord Burnett: Prison Overcrowding Driven by Sentence Inflation, Not Crime
Tougher sentencing has filled Britain’s prisons to bursting point, but it has not made the country any safer. According to Lord Burnett, the former Lord Chief Justice of England and Wales, the driver for the prison overcrowding crisis is decades of political choices on sentencing, rather than an increase in criminal activity.
The Rise in Custodial Sentences and Lengths
The prisons in England and Wales are full, and successive governments have struggled to increase capacity as prisoner numbers rise. The prison population is determined by factors such as the type and length of sentences, release regimes, and recalls for licence breaches. All these elements require urgent attention because expanding capacity to meet demand has proven impossible.
There has been a striking rise in the use of custodial sentences since 1993. In that year, only 16 per cent of sentences resulted in immediate custody, but this figure soared to 32 per cent by 2024. This shift has been accompanied by a reduction in the use of community and suspended sentences.
Alongside the increased use of immediate custody, sentence lengths have also grown significantly. The average sentence length for offences tried only in the crown court was 16 months in 1993, but by September 2025, it had reached 22 months. Sentences of 10 years or more more than tripled between 2010 and 2024, while shorter custodial sentences of 12 months or less decreased by 64 per cent. Additionally, the number of prisoners serving life sentences has risen from just over 3,000 in 1993 to more than 7,500, with minimum terms also increasing.
Political Drivers and Public Misperceptions
These increases have been driven by statutory interventions by successive governments to hike sentences, introduce minimum terms, and extend the time life-sentence prisoners must serve before release consideration. This has pushed up sentences across the board.
The incarceration rate in England and Wales, steadily climbing over the last 25 years, is high by European standards at 138 per 100,000 people. In contrast, France stands at 126, Sweden at 92, and Germany at 71, with other Nordic countries even lower.
Time spent in custody has increased for many prisoners. Most do not serve their full headline sentence and are released automatically at some stage, while others are released only if the Parole Board deems it safe. Release provisions are complex and ever-changing. The Independent Sentencing Review recommended a simpler model, which parliament has included in the Sentencing Act 2026, allowing determinate-sentence prisoners to be released after a third of their term, subject to good behaviour.
Sentencing is not solely about punishment; its statutory purposes also include crime reduction, offender reform and rehabilitation, public protection, and reparation. There is no hierarchy, and imprisonment is not the only tool available to courts. However, if prison is used, courts must not pass a custodial sentence unless nothing else will do, and it must be for the shortest term commensurate with the offence's seriousness.
All politicians acknowledge the prison crisis, yet there has been little public acknowledgement that sentence inflation has been a potent driver of the increasing prison population, or whether it aids rehabilitation and crime reduction.
Current Prison Population and Costs
There are about 85,000 prisoners in England and Wales. Approximately 20 per cent are on remand awaiting trial or sentence, and 14 per cent have been recalled for breaching licence conditions after release. In 1993, the prison population was around 44,000, with fewer than 100 recalled prisoners.
The Sentencing Review found that between 2010 and 2024, sentence increases appeared to be driven by a rise in the custody rate and sentence lengths, rather than changes in the crime mix. These trends stem from legislative and policy changes reflecting political judgements about public mood.
However, that public mood is not evidence-driven. A widespread view holds that serious crime has been rising and sentences falling, but neither is correct. The Office for National Statistics has noted a long-term decline in common crime types since the 1990s, with homicide offences at their lowest ever recorded and serious violence falling. Yet, public perception in 2023 was that crime was rising, and most people surveyed believed sentences were shorter than 25 years ago, when the opposite is true.
Evidence on Sentencing and Rehabilitation
The fall in serious offending has been observed across advanced democracies, and academic research does not suggest increased sentencing is a factor. Research for the Sentencing Council in 2022 found little evidence that increasing sentences has a deterrent effect, as much offending is associated with irrational thinking, emotional arousal, and substance influence.
Governments appear to have legislated based on myths rather than reality. Sentence inflation has contributed to prison overcrowding, resulting in poor conditions for inmates and staff. Necessary rehabilitation, training, and education work is not being undertaken, yet such efforts are crucial for reducing reoffending and helping prisoners become productive members of society.
Criminal activity carries a clear economic cost, and imprisonment is expensive. The average annual cost per prisoner is just under £55,000. The government has announced £4.7 billion in spending to build prisons between 2026 and 2030, with a £1.8 billion maintenance backlog and overall capital spend estimated at £9.4 billion to £10.1 billion over 10 years. Reoffending costs were estimated at £18 billion annually by the House of Lords Justice and Home Affairs Committee in 2025.
Imprisonment is very costly, but expenditure on effective rehabilitation is money well spent. The average cost to the Probation Service in 2023-2024 for an additional person on their caseload was £3,150.
Consequences of Overcrowding
Overcrowding has led to direct adverse consequences for many prisoners. The Prison Service accepts that in the 12 months to March 2025, 25 per cent of prisoners were held in overcrowded conditions lacking a decent standard of accommodation.
The Justice Committee in 2025 found that 50 per cent of prisoners are not taking part in education or work in prison, and two-thirds of offenders are not in education or work six months after release. Eighty per cent of all offending in England and Wales is reoffending. Overcrowding has caused arbitrary prisoner transfers, disrupted sentence progression, and reduced access to purposeful activity, education, and family contact.
A failure to rehabilitate prisoners will do nothing to reduce reoffending rates and crime. Indeed, poor prison conditions, including overcrowding from sentence inflation, likely have the opposite effect.
The Role of Sentence Length and Reform
A custodial sentence is a serious punishment, with longer sentences meaning greater punishment. The public is protected while a prisoner is inside, and individuals targeted by offenders gain respite. Sentences for dangerous offenders provide extended protection and are necessary, but that does not apply to most prisoners.
It is well understood that longer sentences have little deterrent effect; the certainty of punishment matters more than its length. Rehabilitative interventions during the sentence and support after release are more important than sentence length in reducing reoffending. In fact, evidence suggests longer sentences increase reoffending likelihood for some offenders.
The Sentencing Review examined programmes in Texas, the Netherlands, and Spain, all of which reduced reliance on custody, increased rehabilitation-focused programmes, and saw drops in prison populations and reoffending.
In England and Wales, we seem to have achieved the worst of all worlds. Sentences have increased along with the proportion served in custody, and prisoners are more readily recalled. This inflicts greater punishment at great cost, including growing funding needs for prisons, human costs borne by prisoners and their families, and wider costs from adverse impacts on rehabilitation and reoffending. Lengthening sentences or time in custody is often counterproductive.
Legislative Changes and Future Recommendations
The Sentencing Act 2026 marks the first reversal of a long-standing legislative trend. It will see many offenders released after serving a third of their sentences, restrict short custodial sentences, widen suspended sentence availability, and tackle recall overuse. Recent reforms were presented as a necessary reaction to overcrowding rather than being the right thing to do.
One Sentencing Review recommendation was to establish an external advisory body on sentencing policy, informed by evidence on what works to reduce crime and prevent reoffending. It would analyse policy change effects and make longer-term impact assessments. The Justice Committee has made a similar suggestion.
Sentencing policy and legislative reform in recent decades have not been grounded in evidence of their effect on crime or reoffending. While raw politics cannot be entirely removed from this area, it would be a welcome change if major political parties moved from reacting to events to a more principled, evidence-based approach. This might ease the pressures causing sentence inflation and lead to sentencing that does not actively damage the public interest.
Lord Burnett of Maldon was Lord Chief Justice of England and Wales from 2017 to 2023 and a member of the Independent Sentencing Review. This is a summary of parts of the Sir Patrick Neill law lecture given by Lord Burnett on 20 February 2026 at All Souls College, Oxford.
