Will ending short prison sentences fix prison overcrowding? What an expert thinks

AnnaStills/Shutterstock The UK’s latest law on sentencing came into force on March 22. Among other changes, the new law means that, in England and Wales, people who would previously have been sent to prison for short sentences will instead serve those sentences in the community. This means they will need to attend appointments with probation, do certain rehabilitative activities and may also be restricted from doing certain things or going to certain areas. They might also be required to do a set number of hours of community service. The new law requires courts to avoid imposing custodial sentences of less than 12 months, except in exceptional circumstances. It also extends the maximum sentence that can be suspended from two years to three. This gives judges discretion to suspend sentences for more serious offences that would previously have required immediate custody. Possession with intent to supply class A drugs (where a guilty plea can reduce a starting-point sentence to three years); street robbery; the most serious forms of controlling and coercive behaviour; and a third conviction for domestic burglary could now all, in theory, be suspended. At the end of 2025, there were around 3,500 people serving a prison sentence of less than 12 months in England and Wales. Around 44% of all prison sentences are shorter than 12 months. They tend to be imposed for offences such as shoplifting, common assault or breaches of restraining orders. People given short sentences have the highest reoffending rates when compared to other sentences. Evidence from Scotland, where a similar legal approach has been in place since 2019, has found that people released from a short sentence are reconvicted nearly twice as often as those sentenced to serve a community sentence. Short sentences mean that people lose access to families, employment and housing, but they do not allow prisons enough time to provide the support that people need prior to release. As such, they account for more than half of all recalls to prison following release, and have contributed to increases in the prison population in recent years. People serving short sentences typically have acute and unaddressed needs, such as housing instability, substance misuse and mental health concerns. And evidence shows that people sentenced for similar offences are more likely to offend after a short prison sentence than if they had been given a community sanction. The changes are intended to alleviate pressure on the prison estate by reducing the number of people given immediate custody. Prisons in England and Wales have been working at capacity for years. These new powers should also prevent the need for emergency early release schemes, which have failed in the past. Both Conservative and Labour governments have introduced emergency early release schemes in recent years. Under a scheme run by the previous Conservative government from 2023-24, 42% of people released were recalled to custody. This was partly due to an inability to plan for their release, and a shortage of support services such as accommodation. We do not yet have recall data for the scheme introduced by the Labour government in 2024, which allows people to be released 40% of the way through their sentence. But overall recall rates have remained high. With the new law in force, we should see a relatively quick decline in the number of people sentenced to custody. A steady reduction in the prison population should follow. It is also worth highlighting that expanding the use of community sanctions can backfire, resulting instead in unintended net-widening: more people drawn into the penal system overall, rather than just reducing the number of people in prison. This could happen if judges begin to give more suspended sentences to those who would otherwise have been given a fine or community order. They may also sentence people to longer in prison to avoid the requirement to suspend the sentence – what criminologists call up-tariffing. How a doubling of sentence lengths helped pack England’s prisons to the rafters

Although broadly positive, these changes are not necessarily a silver bullet for the well-documented prisons crisis. For one thing, the reforms will result in more work for the probation service, which is already under pressure. In recent inspection reports, the probation inspectorate has described the service as having “too few staff, with too little experience and training, managing too many cases”. Introducing more people with higher risk profiles into probation narrows the margin for error considerably. The service has been planning for these changes – by reducing the extent to which people at the end of their sentences are supervised – but how well it copes with these increased numbers remains to be seen. If probation fails to cope, we may see more people breaching their orders. When this happens, their custodial sanction is activated, and they are swiftly put in custody to serve their sentence. The effect on crime There is also the question of whether the act will affect crime levels, which have been decreasing in recent decades. Criminological evidence has repeatedly shown that changing the seriousness of a punishment does not deter people from offending. What is much more important is the perception of whether one is likely to be caught, and the speed with which one might be punished. In reality, most people who are about to commit an offence – especially those for which shorter custodial sentences are imposed – are not thinking about what sentence they may or may not receive at some undetermined point in the future. Sentencing severity is a blunt tool for dealing with crime, especially given the complex reasons behind why people offend. The impact on crime will depend on other parts of the criminal justice system. Police performance, court backlogs and the nature of high-volume offending such as shoplifting and online fraud will all have much more immediate effects on crime levels than tinkering around the edges of sentencing. Short sentences achieve very little beyond disrupting peoples’ lives and relationships and making it more difficult to find housing and employment, both of which are strongly correlated with re-offending rates. If probation copes with the additional workload, if recall rates do not skyrocket, and judges and magistrates stick to the ask, then the reforms could result in a more sustainable prison system that causes less harm than it currently does – that should be better for everyone.

Jake Phillips does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.