MADISON – The American Civil Liberties Union (ACLU) of Wisconsin, with pro bono assistance from Quarles & Brady LLP, petitioned a Dane County Circuit Court Monday afternoon to order that the state Department of Corrections (DOC) offer mothers incarcerated or under community supervision the opportunity to participate in a program that would allow them to continue parenting their children under the age of one with special accommodations and programming.
For more than 30 years, a long-overlooked state statute – referred to as the “mother-young child care program” – has required the DOC to provide programming that, among other things, allows pregnant and postpartum individuals who are incarcerated or on supervised release to retain physical custody of their infants and be held in the least restrictive custody.
The DOC does not currently offer this program to any incarcerated person, and officials wrongly argue that the agency doesn’t need to follow the law because it is an “old statute and there is no funding for it.” However, the statute, Wis. Stat. 301.049, makes this program mandatory.
The ACLU and Quarles & Brady LLP are representing two Wisconsin women in DOC custody: one who is currently pregnant and due in June of this year and a second who gave birth in DOC custody in 2023. DOC has denied or ignored their requests to participate in the mandatory statutory program.
“All we’re asking of the DOC is that it simply follows the law and recognizes the legal rights of pregnant people to apply for and access this child care programming,” said Hayley Archer, staff attorney with the ACLU of Wisconsin. “We know that there are so many people in prison who are also parents, and the near-total separation that justice-impacted families endure is one of the most cruel, inhumane, and, for a child, developmentally harmful aspects of our carceral system. The DOC has knowingly ignored its responsibility to permit individuals to apply for and participate in programming as the law requires.”
Ryan Cox, Legal Director at the ACLU of Wisconsin, added: “We hope the court takes swift action to enforce the mother-young childcare statute and compels the DOC to make this program available to eligible individuals. Research indicates children who lose contact with an incarcerated parent are often traumatized and more likely to experience negative life outcomes as adults. Maintaining those relationships is the best option for combating the harm a child experiences when their parent is incarcerated.”
States across the country have implemented programs that allow for mothers to continue parenting their newborns. There are nearly a dozen states, for instance, with prison nursery programs, including our neighbors in Illinois. About half a dozen of these programs allow children to physically remain with incarcerated mothers for up to 18 months. These programs vary in eligibility criteria and size.
Sometimes prison nurseries are in a separate wing from the general population, other times they're off-site entirely. Children and mothers live together. The programs often provide support like parenting classes, daycare, counseling, life skills training, substance abuse treatment, and education.
When families are able to sustain strong bonds in spite of the criminal legal system, it has been shown to benefit both the incarcerated person and their child while reducing recidivism rates.
