ACLU seeks court action over delayed prison nursery program

It’s been nearly a year since a Dane County judge ordered Wisconsin’s Department of Corrections to put in place a program for incarcerated moms and their infants.

But the department has yet to do so, the American Civil Liberties Union of Wisconsin wrote in a court filing earlier this month.

Now, the ACLU is asking Circuit Court Judge Stephen Ehlke to reopen the case.

“We’ve been in communication pretty regularly with the DOC to inquire about progress, and at this point, we just can’t wait anymore,” said Jen Bizzotto, an ACLU Wisconsin attorney, in an interview with WPR.

In a statement provided to WPR, a DOC spokesperson did not provide a time estimate of when such a program would be able to launch for mothers behind bars.

“Reforming the criminal justice system to make our communities safer is a key priority of (Gov. Tony Evers’) administration and that includes corrections reforms such as a mother-young child program for incarcerated women,” DOC spokesperson Beth Hardtke wrote in an email.

The ACLU sued in 2024, arguing that Wisconsin’s Department of Corrections wasn’t following a 1991 Wisconsin law. That law states the department must provide a “mother-young child care program” to women in the system who are pregnant or have a baby under one year old.

That includes allowing those women to be in the least restrictive setting possible while preserving “community safety” and allowing the women to maintain “physical custody of their children.”

In other words, that would be similar to the prison nursery programs that exist in some other states. Those nurseries allow incarcerated women to be physically present to nurture their infants.

In response to the lawsuit, the DOC acknowledged it did not have a nursery program for currently incarcerated moms.

But the DOC pointed to the word “or” in the 1991 state law. Part of the law says that the program shall be available to currently incarcerated moms or to mothers “on probation, extended supervision or parole.”

As a result, the DOC argued it was complying with the law because it makes programming available to mothers who are out of prison under DOC supervision.

Ehlke disagreed.

In a writ issued in late February of last year, Ehlke ordered the DOC to implement a mother-young child initiative for imprisoned mothers.

In his most-recent budget request, Evers proposed expanding the prison system’s earned release program, so that it could include successful completion of a mother-young child program.

But Wisconsin’s Republican-controlled Legislature denied funding that would have expanded earned release programming.

“The practical effect of this is that DOC is required to expand the program to include incarcerated mothers with no additional funding and with no statutory changes that would allow more incarcerated women to take part,” Hardtke wrote.

Bizzotto, the ACLU attorney, said she disagrees with the DOC’s position that a change to state law would be needed to allow a wider swath of incarcerated women to access a prison nursery initiative.

And Bizzotto said Ehlke’s order applies, regardless of whether the Legislature granted the governor’s funding request.

“The order was to comply with the law and it’s the DOC’s responsibility to figure out how to do that,” Bizzotto said.

In earlier court filings, the ACLU suggested that Elke should give the DOC about two months to comply with his order.

But ultimately, Ehlke was more vague. He wrote in 2025 that the prison system must comply “forthwith,” or without delay.

Roughly a year since Ehlke’s order, and more than three decades since passage of the Wisconsin law, the ACLU says the DOC is continuing to delay.

“To avoid another year of excuses – or worse, another 35 years – Plaintiffs ask the Court to reopen this case for the purposes of enforcing the Court’s Writ,” the ACLU wrote in its latest motion.

As in prior years, Wisconsin’s current corrections budget includes $198,000 a year for what’s listed as a mother-young child care program. But that money is going toward programs for moms on community supervision — not to a nursery that could be used by moms currently behind bars.

Bizzotto said DOC staff indicated that they visited a prison nursery program in another state, so they could learn about implementing one in Wisconsin.

But she said, despite multiple meetings between the DOC and the ACLU, the prison system has not yet provided a definitive timeline of when a prison nursery would open.

Because of those delays, Bizzotto says mothers are being deprived of the chance to bond during their babies’ crucial first year of development.

“For a mother who is in prison, who is behind bars right now, there is no way for her to spend the night with her baby,” Bizzotto said. “There is no way for her to wake up like so many new moms do in the middle of the night to feed her baby, and that is not just wrong, but also unlawful.”

One of the ACLU’s plaintiffs in the case, Alyssa Puphal, was formerly incarcerated at the Taycheedah and Robert E. Ellsworth prisons.

In a video published by the ACLU last year, Puphal described having limited access to her son, Bentley.

“I’m watching my child grow up in pictures,” Puphal said in the video. “He’s almost 18 months, and he doesn’t say, ‘Mom.’”

In the spring of 2025, both Puphal and the lawsuit’s other plaintiff were released from prison onto extended supervision.

Their kids have since aged out of the mother young-child program, Bizzotto said.

“It shows that the delay has real consequences and that we’re still the in the same place as we were functionally as a whole year ago,” Bizzoto said. “And these women have moved on with their lives. The harm has already been suffered, and women continue to suffer in DOC custody.”

A scheduling conference in the case is set for March 2.