Judge orders Wisconsin prison system to implement program for incarcerated moms and their babies

A Dane County judge is ordering Wisconsin’s Department of Corrections to launch a program for incarcerated moms and their infants. 

That’s after the American Civil Liberties Union of Wisconsin won a lawsuit that it filed last year on behalf of two mothers who are locked up in state prisons.

In its suit, the ACLU cited a 1991 state law that requires Wisconsin’s Department of Corrections to provide a “mother-young child care program” for women in the system who are pregnant or a have a baby under 1 year old.

The law lists criteria for the program, including making accommodations for mothers so they can be in the least restrictive type of confinement possible and be physically present to care for their infants.

Close to a dozen other states offer similar programs, often referred to as prison nurseries, according to the ACLU. But that hasn’t included Wisconsin.

“The first year of a child’s life is so important in their emotional development and their connection with their moms and their families,” said Ryan Cox, the legal director for the ACLU of Wisconsin, in an interview. “There are implications that last the rest of their life when infants are separated from their mothers.”

One of the lawsuit’s plaintiffs, Alyssa Puphal, described how her son was taken from her less than a day after she gave birth to him. Puphal is currently incarcerated at the Robert E. Ellsworth Correctional Center after being transferred from Wisconsin’s Taycheedah prison.

The suit described how most of Puphal’s family lived far away, and it said she was only able to have four in-person visits with her infant son during the first 10 months of his life.

“It’s just important for folks to know how much trauma new moms go through when they’re justice impacted,” Cox said. “It’s a devastating process to give birth within the Department of Corrections’ custody and be separated from your newborn baby within 24 hours.”

Two sides debated the meaning of the word ‘or’

At issue in the lawsuit was the meaning of the word “or.”

The law in question says Wisconsin’s Department of Corrections “shall” provide the program for females who are prisoners “or” on probation, extended supervision or parole.

In legal filings, the corrections department acknowledged it doesn’t have a mother-young child care program available to women who are currently imprisoned.

Nonetheless, the department argued it had complied with the law because it offers resources to moms who are out in the community while on probation, parole or extended supervision.

But the ACLU, which brought the suit using pro bono legal help from the law firm Quarles & Brady LLP, argued that wasn’t enough. It said the law required that programming be offered to moms who are currently imprisoned, as well.

Circuit Court Judge Stephen Ehlke agreed.

“The legislature was presumably trying to help as many infants and mothers
as it could, regardless of the mother’s status within DOC,” he said, according to a transcript of Ehlke’s oral ruling. “Given the use of the word ‘shall,’ why would the legislature have given DOC the authority to choose one class of infants and mothers, those on probation, extended supervision or parole, over another set, those who are incarcerated?”

Beth Hardtke, a spokesperson for Wisconsin’s Department of Corrections, declined to comment on the order.

She did not answer questions about exactly when the department would begin offering the program, what that program would look like, how much it would cost or how many women it would serve.

An average of 25 women give birth in Wisconsin DOC custody each year, according to the ACLU, and Cox said he hopes a newly launched mother-baby program would have enough capacity to serve them all.

Court order doesn’t set a specific deadline

The ACLU asked the court to set a deadline, giving the DOC 60 days to fully implement a mother-baby program. Prison officials argued that timeline would be unreasonable.

“DOC has surveyed its prison facilities and has determined there is no space currently available that would be appropriate for housing infants,” attorneys with the Wisconsin Attorney General’s Office wrote on behalf of the prison system. “Offering a program will require either costly alterations be made to current facilities or for a new building to be acquired or built.”

The department also said the requirement would force it to hire or contract services to provide infant-specific health care and meet other needs. Requiring those changes in two months, the DOC said, “would run counter to the intention of the statute that presumably envisions a safe and appropriate setting for women to live with their babies.”

In a writ of mandamus issued this week, Ehlke did not set a specific timeline but said the department should launch the program “forthwith,” or without delay.

Cox said the ACLU plans to go back to the court within 60 days asking for a status update on the program’s implementation.

“Considering that the Department of Corrections has already delayed implementation of the program for (nearly) 35 years, we’re kind of at the end of our patience in waiting on Department of Corrections to put together the program required by the law,” Cox said.