The Robert Ellsworth Correctional Facility, a women’s prison in Wisconsin. | Photo via Wisconsin Department of Corrections
A Dane County judge sided with the Wisconsin ACLU after the nonprofit argued that eligible, incarcerated mothers must be able to receive programming and support for their relationships with their children under the age of 1.
At issue in the case is Wisconsin state statute 301.049, which creates a “mother-young child care program.”
The law mandates that the Wisconsin Department of Corrections (DOC) “shall administer a mother-young child care program” allowing eligible women to retain physical custody of their children during participation in the program.
Circuit Court Judge Stephen Ehlke said that the plaintiffs — two incarcerated mothers — had established “a clear right” to be considered for the program, according to the transcript of the oral ruling.
The American Civil Liberties Union of Wisconsin expects to work with the DOC to determine a “realistic timeline” for the program’s implementation, the nonprofit said in a statement.
“We are encouraged by this current ruling and hope the final judgment will also reflect the same sentiment – that the separation of families is one of the most debilitating and traumatizing aspects of the criminal legal system,” Ryan Cox, legal director at the ACLU of Wisconsin, stated.
The ACLU’s initial complaint in June sought a writ of mandamus ordering the DOC to comply with the statute. While the plaintiffs asked for a “provisional” emergency order, Ehlke said he didn’t see how further proceedings would change anything and thought his order would be final.
He asked the plaintiffs to draft an order that would fulfill their request for relief and said he would sign it once it had been reviewed by the counsel for the Department of Corrections.
Juli Bliefnick is the operations coordinator for FREE, a statewide nonprofit addressing the gender-specific issues of women’s incarceration and reentry. In a statement to the Examiner she said FREE was overjoyed by the ruling.
“This is a crucial first step in reducing the harm caused by mother/infant separation during the most critical bonding period for mother and child, and the formative year after the baby is born,” Bliefnick said. “We hope this will open doors for collaboration between the Department of Corrections and other community organizations to ensure that incarcerated mothers and their babies receive dignified and compassionate care through this program.”
How did the judge rule?
Both sides agreed that a program was in place, but they disagreed over whether the DOC was required to provide programming for incarcerated mothers, Ehlke said, according to the transcript of the oral ruling.
The statute says the DOC is required to provide the program for females who are prisoners “or” who are on probation, extended supervision or parole and who would be participating in the program as an alternative to revocation.
Extended supervision is when an offender is released to the community under certain conditions. If a person commits a violation and their supervision is revoked, they will either be returned to court for sentencing or transported to a correctional institution.
The ACLU of Wisconsin argued that the word “or” in the statute meant the DOC is supposed to provide the program for both of these groups, Ehlke said. The DOC argued that if the Legislature had meant to use the word “and,” it would have done so, he said.
Ehlke said that if the statute used the word “and,” mothers would only be eligible for the program if they were in both groups at the same time, and that this would be impossible. For example, a person could not be incarcerated and on probation at the same time. In this way, wording the statute that way would be “nonsensical,” he said.
Ehlke also said the Legislature “was presumably trying to help as many infants and mothers as it could, regardless of the mother’s status within DOC” when it passed the law.
“Interpreting the statute as giving the DOC discretion to choose between these groups makes no sense given the purpose of the statute is presumably to help as many people as possible,” Ehlke said.
Ehlke said that he understood there “is a financial difficulty, perhaps, from the DOC’s point of view” but that was an issue for the state Legislature.
Who are the plaintiffs?
The plaintiffs in the case are Alyssa Puphal and Natasha Curtin-Weber, who are currently incarcerated at the Robert E. Ellsworth Correctional Center in Union Grove, WI, according to the DOC’s offender locator.
Puphal gave birth to a son in August 2023, according to the complaint the ACLU published in June. Over the approximately 10 months between his birth and the filing of the complaint, Puphal had four visits with her son, about 12 to 15 hours in total. Her family lives too far away for regular in-person visits, the complaint said.
As of June, Curtin-Weber was pregnant and expected to give birth in July.
What programming does DOC already provide?
A Department of Corrections spokesperson told Wisconsin Public Radio last June that Wisconsin offers programming to support mothers out on parole, probation or extended supervision.
The programming uses three contractors: ARC Maternal and Infant Program in Madison, Bethany Recovery Center in Oconomowoc and Meta House in Milwaukee, WPR reported. It uses the contractors to help women avoid recidivism through treatment of substance abuse disorder and other issues.
The DOC said 224 women had participated over the previous year, WPR reported in June.
What is the program described in the statute?
The ACLU’s complaint said the law in question was enacted in 1991. To enter the program, incarcerated mothers must provide consent, receive the department’s approval and be either pregnant or have a child under 1 year old, the statute says.
The statute lists the following directives for the program:
- Place program participants in the least restrictive placement consistent with community safety and correctional needs and objectives.
- Provide a stable, safe and stimulating environment for each child participating in the program.
- Provide program services with the goal of achieving a stable relationship between each mother and her child during and after participation in the program.
- Prepare each mother to be able to live in a safe, lawful and stable manner in the community upon parole, extended supervision or discharge.
The Wisconsin Department of Corrections did not respond to requests for comment.
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