If we were serious about using the justice system to keep society safe, we would make quite different investments, writes Dr Ian Marder of MU's School of Law and Criminology.

    One 'difficult choice' facing the new UK government is how to handle a prison system bursting at the seams. Building on the ‘end of custody supervised license scheme’, in which some people in prison have been released up to 70 days earlier than usual, Labour announced a more systematic approach to releases.

    People serving less than four years – aside from those who commit sexual, domestic and other violent offences – can go home earlier, with 1,000 probation officers recruited to supervise their release. The Justice Minister Shabana Mahmood called it ‘the only way to avert disaster’.

    According to Metropolitan Police Commissioner Mark Rowley, it is 'the least worst option'. The pressure on the system is only increasing, as many people are set for prison sentences following recent street violence.

    But this is far from being just a British problem: most countries have experienced serious overcrowding in their prisons for years. The causes include the growing imprisonment of women, longer sentences for more offences, the greater use of prison for minor offences, higher reporting rates for sexual and other serious offences, and growing numbers held on remand, pre-conviction and pre-sentence. Note that growing crime is not a factor, as crime has fallen across high income countries for years, contrary to popular belief, and with no clear connection to the use of imprisonment.

    Ireland also faces an overcrowding crisis. Figures released last month show that the prison population stood at 5,015. But with bed capacity at 4,514, prisons were 111% overcrowded and many people have been sleeping on mattresses on the floor.

    As retired prison governors and probation leaders have put it in recent weeks, Ireland is ‘addicted to prisons’. That means we imprison high numbers of people who commit nonviolent offences for short to medium-length sentences, including people whose offending clearly stems from addiction, housing, trauma, serious victimisation and mental health needs.

    Should our government take a page from the UK's playbook and adopt an explicit policy of early releases? Before deciding that, we should consider current policies around early release, why we put people in prison in the first place and the likely consequences of a change in tack.

    Who currently gets early release from prison in Ireland?

    Under Ireland’s prison rules, most people who serve ‘determinate sentences’ – prison sentences with specific time periods – qualify for 25% ‘remission’. This means that a person with a sentence of four years may be released unconditionally after three years. This differs somewhat from other countries: similar people in England and Wales are released after half their sentence (rising to 60% for some under the new policy), although this is conditional on supervision by probation.

    In Ireland, people can apply to the Minister for Justice for ‘enhanced remission’, which is up to one-third of the sentence. A review of remission in 2023 retained these levels. Research from 2017 found that very few people receive enhanced remission, but the figures are not routinely published.

    Ireland also hosts various ‘temporary release’ schemes. These schemes are structured, meaning that people on them are often placed under mandatory probation supervision and can be recalled to prison at any time for many reasons. Schemes have several eligibility criteria, including risks to the public, behaviour in prison, the nature of the offending, and the chances of temporary release supporting your reintegration.

    There is some reason to suspect that the use of temporary release has increased as a way to address overcrowding: the Community Return and Community Support Schemes were expanded in March 2023 in recognition of the need to alleviate overcrowding. Still, only 555 people – not included in the 5,015 figure – were on temporary release on 19 July.

    Can we release prisoners while also keeping society safe?

    Whether you think it is right to release people early might depend on what you see as the purpose of criminal justice. If you believe that justice should be retributive – doing justice by intentionally imposing harm on people who break the law – whether prisons are overcrowded (or rehabilitative) is irrelevant. It would probably not be just, from this perspective, to decrease the amount of harm that the court originally imposed.

    Others might believe that justice is about preventing crime and rehabilitating people who commit crime. From this perspective, the justice system should help people to solve the problems in their lives that led to the offending. You might think many people end up in prison because society fails them – and this is inherently connected to their status or wealth. Both people in richer and poorer areas take drugs, commit crime when young, and experience mental health crises, but the former have access to resources that keep them free from the sharp talons of criminal law.

    A third rationale for criminal justice is incapacitation. This brings us to crux of the matter: can we release people from prison, while keeping society safe? In 2022, 3,046 (or almost 63%) of the 4,855 people imprisoned were sentenced to less than a year, including 2,133 for under six months. These figures do not imply that most people going to prison are such a danger that incapacitation is a major issue. Whether a person receives six months or six years, they will likely be released at some point. We all have to live with the consequences of the harms and long-term disruption that imprisonment causes to people’s lives.

    Meanwhile, over 900 out of 5,015 people in prison are on remand, including some who have been in prisons for many years awaiting trial or sentencing. The more that we remand people in prisons before they are convicted, the more this challenges the notion that Ireland takes the presumption of innocence seriously.

    Solutions require different thinking

    Someone who is released from prison – whether at or before the end of their sentence – could go on to offend again and the reality is spending time in prison almost always makes this more likely. If we were serious about using the justice system to keep society safe, we would make quite different investments.

    For example, we would prioritise community justice schemes so that they were available to all those for whom prison would only compound their problems. We would ensure that people in the community, whether sentenced or otherwise, had access to high quality mental health, housing, victim and addiction services. We would resource resettlement services, so that people leaving prison have timely, consistent support.

    We would also invest in improving treatment and services for victims. As recent events have made so clear, victims experience additional harm from interacting with criminal justice processes that are not designed to meet their needs. Investments in victims services are growing, but remain far below the level of need. Assuming that ‘justice’ relates only to the time a person spends in prison is a major factor in draining resources that could be spent helping victims. This constrains us from thinking creatively about how to reduce social harm and undo the injustice victims experience.

    We have to stop thinking we can imprison our way to a safer society. The time is now for leadership to find a long-term solution to our misguided obsession with prison. The new UK prisons minister, James Timpson, has signalled that he recognises a different approach is needed. Let’s hope that this provides some motivation to those in the current and next Irish governments to show strength and change penal policy for good. Routine access to structured release and enhanced remission are important, but a smarter justice system requires different thinking altogether.

    This piece originally appeared on RTÉ Brainstorm