Releasing prisoners early won’t be popular – but what choice did the Tories leave the government?

The lack of space in our prisons has reached critical mass. As such, many people who judges and juries have ruled should be kept away from the public will be let loose.

Some will use their unexpected freedom to re-offend – although the worst of the convict population won’t be let out under the new emergency rules on early release. There will be an outcry, calls for a public inquiry, questions in parliament. Labour will no doubt be labelled “soft on crime” by Conservatives who actually created the problem, and who refused to face up to the tough choices required to ameliorate it.

The most unscrupulous of what is now the official opposition will present it as the first active choice by the new Labour administration: to release muggers and rapists onto the streets to create mayhem – as if they were doing it for fun.

In reality, it is the last thing the new justice secretary, Shabana Mahmood, wants to do. That’s politics, of course – but it shows just how distorted and toxic the debate on law and order has become.

For all practical purposes, Britain’s jails are full (as well as filthy and unsafe). Keir Starmer says he is “shocked” by the crisis. So he should be. Earlier release of criminals convicted of less serious offences is the only way to ensure that those now accused of murder, rape and other violent assault and going through the court system can be detained after their conviction. For Mahmood, there is no alternative – but that won’t protect her from attack.

In fact, as was widely reported back in March, then justice secretary Alex Chalk was preparing just such a plan to deal with the crisis. Now, having lost his job and parliamentary seat, he tells us via a BBC podcast that his plan was blocked by Rishi Sunak.

Presumably, according to Chalk’s account, Sunak judged that he couldn’t get parliamentary approval for such an initiative and was frightened about the public reaction to such obvious evidence of abject incompetence in the run-up to a general election. So the crisis was allowed to intensify, with the buffer between inmates and capacity down to just a few hundred out of an estate of about 89,000 places. A more modest extension of “custody supervised licence” was introduced instead. The crisis was postponed, but not for long.

At the time Mahmood wisely attacked Chalk for trying to sneak the announcement out, rather than challenging him on the substance of the move itself, which she must have realised she’d have to implement herself before too much longer. She said: “The government has refused all requests to be transparent about the scale and the impact of this scheme. This is no way to run the criminal justice system, or indeed the country.”

Well, now it is her turn, and the same problems face her. Even the early release measures she’s about to announce will only buy her about 18 months before the prisons start filling up to bursting point again. Her options are distinctly limited, and all she can do is follow the same advice she dished out to Chalk when she was in opposition and be transparent.

Fortunately for her, she will have the assistance and advice of the new prisons minister, James Timpson, whose family company has done great work in rehabilitation. He believes only a third of prisoners in jail should be there, and he knows what he’s talking about. He should prove a formidable advocate for reform of the system.

Supported by Timpson, this is what Mahmood needs to say and do:

First, she needs to make perfectly clear what the long years of austerity and neglect did to the prisons – left them unable to provide basic living conditions, let alone to promote training and rehabilitation. Second, she needs to remind her critics of the failure to build more prisons, as the Conservatives continually promised.

Third, communicate that successive Conservative ministers had introduced longer and tougher sentences, with a negligent disregard for where the subsequent increase in inmates would be housed. Fourth, clarify that our run-down courts, placed under even greater stress by Covid, are leaving far too many of those on trial or awaiting trial in remand cells.

Fifth, she does need to speed up the deportation of the few thousand foreign offenders in the system – an easy win for any justice secretary. Sixth, she should end the indefensible system of indeterminate prison sentences.

Last, she should facilitate a review of the cases of those in the female prison population who find themselves in prison purely because of unduly harsh sentencing rules.

All that will help protect Mahmood’s immediate political position, but won’t solve much in the longer term. The problems are too fundamental. For that she needs to look again at policy: sentencing guidelines, alternatives to custodial sentences, electronic tagging, well-supervised probation – and, yes, trying to find new ways to fund an expansion of the prison estate, maybe through the dreaded Private Finance Initiative (PFI). If we are to be tough on crime, then we need to create more prison capacity. The authorities might also want to try being a bit smarter on crime and criminality.

If she were to be really brave, then Mahmood might also be “transparent” with the British public about their mania for incarceration – and their unwillingness to pay the taxes required to find places to house this army of inmates. The national obsession with “locking ’em up and throwing away the key” necessarily implies a huge prison-building programme – and someone needs to pay for it.

If the British electorate did not put retribution above all else in the world of crime and punishment, then we would never have found ourselves in this mess. As it is, we seem an irredeemably vengeful, sadistic nation, keen to make the crims pay the price for their actions, unsympathetic to the overcrowding and squalor they are forced to endure, and always unwilling to pay the price of accommodating them.

Unlike hospitals or schools, there are no votes in making prisons work. For a progressive politician that is a difficult context in which to break through the prejudices and make the positive case for reform – but if Mahmood does not confront the public with these tough choices, then she will find herself indefinitely detained in a policy prison of her own making.