Andy Burnham has a problem. Desperate to ensure that his government isn’t defined by releasing killers and sex offenders early, he’s ‘paused’ the planned early releases which are due to commence in September.

There is something in the argument that many women prisoners pose a low risk to the public, and that an early release scheme based on risk rather than time served would be more sensible

But, as I wrote yesterday, he’s quickly going to be warned that there is no slack in the prison system – if the Sentencing Act early release scheme isn’t implemented then our prisons will run out of room in November. Burnham finds himself in exactly the same trap Labour encountered after the 2024 election. To allow our prisons to run out of space would create chaos, with court and police cells rapidly filling. At that point the choice would be between the police ceasing to arrest people and uncontrolled emergency releases from jails. It would be the crime equivalent of Black Wednesday, and the government would never recover from it.

So it is not plausible that the early release scheme is paused for any meaningful length of time. Even if the government were to ‘only’ prevent the release of rapists and paedophiles, they would still have to find space in our prisons for almost 2,500 extra men. The problem is that, like the rest of the British state, the Ministry of Justice is unable to build infrastructure. If we don’t have enough prison places, governments are constantly going to be faced with this problem.

Simultaneously, I suspect that His Majesty’s Prison and Probation Service are delighted that they’ve found a simple solution to prison capacity issues. Rather than improving rehabilitation or making probation supervision more effective, so fewer people come back to prison, or simply building enough prison capacity, what officials have learned over the past two years is that they can show ministers terrifying capacity charts and they will approve earlier and earlier releases.

Immediately after Labour won the election, the government announced the ‘Standard Determinate Sentences 40 per cent’ scheme, under which most prisoners were released 40 per cent of the way through their sentence, as opposed to the halfway point which applied before. At that time there were exemptions for those serving sentences longer than four years, sex offenders and domestic abusers. Even these exemptions have disappeared from the new, earlier release scheme established by the Sentencing Act. Those 2024 releases resulted in chaotic scenes in which newly-released prisoners celebrated, announced ‘I’m a lifelong Labour voter now’, or turned out to have been let go in error.

Then came David Gauke’s ‘Sentencing Review’, which did very little to review sentencing policy, but recommended a system under which most prisoners would be released a third of the way through their sentence, with more serious offenders getting out halfway through. That was enacted by the Sentencing Act, whose early release provisions are due to come into effect in September.

The problem is that all of this has increasingly divorced actual sentencing outcomes from both what people feel to be just, and even the most basic requirements of a justice system, such as public protection. Instead, we now have a prison system where whatever sentence might be handed down by a court, the system will engineer lower and lower actual jail time.

It makes sense for the prison service of course. Once inmates are released they are someone else’s problem. But where does it end? Release at 25 per cent of someone’s sentence? Twenty per cent? Ten per cent? This is obviously outrageous to almost everyone.

What we need, therefore, is a little more imagination. One suggestion, made over the weekend by Reform’s Colin Sutton – although I understand it’s not party policy – is that we could solve some of this problem by releasing more women. When I spoke to Colin he told me that:

‘With around 7,000 prisoners earmarked for release, and 4,000 female prisoners in the system, of whom around 80 per cent are non-violent we should make threat/risk the criterion for release, not time served. Ergo logically a disproportionate number to be released will be female. Corral the rest in one prison, use empty prisons for men to ease the pressure.’

The idea has been challenged elsewhere though, with the Conservatives’ Nick Timothy posting that ‘this would be a serious mistake’, that ‘a higher percentage of women than men are in prison for violence against the person’, and that many women prisoners are ‘prolific offenders’. Timothy also pointed out that if we stop jailing women criminal behaviour will change, with gangs using ‘women to run drugs as they have with children and county lines’.

These criticisms are fair, but there is something in the argument that many women prisoners pose a low risk to the public, and that an early release scheme based on risk rather than time served would be more sensible.

My view is that rather than simply releasing these women, many of whom are prolific offenders, with drug addiction issues and therefore likely to rapidly reoffend, we should put more of them into open jails as a matter of urgency. This would keep them in a custodial environment, avoid the chaos of yet another emergency release scheme, and could free up a women’s prison for conversion into one for men. At the same time we should urgently expand the men’s open prison estate.

As a result, men and women in open prisons would be able to work, pay taxes and contribute to the Victims Surcharge fund, while also significantly reducing pressure on the men’s closed prison system. It’s imaginative, and not the sort of bold thinking the MoJ normally go for, but if Burnham wants to avoid being the PM who released the rapists early, he needs to be imaginative and bold.