The American Civil Liberties Union (ACLU) of Wisconsin, with pro bono assistance from Quarles & Brady LLP, petitioned a Dane County Circuit Court 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.

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.

Pro Bono Law Firm(s)

Quarles & Brady LLP