Document Type


Publication Date

Fall 2012

Publication Citation

87 Indiana Law Journal 1825 (2012)


Over the past century, while advocates of prison nurseries have applauded their individual and societal benefits, opponents have criticized their touchy-feely undertones, arguing that children do not belong behind bars. New York instituted the first modern prison nursery program in 1901 at its Bedford Hills facility, and the nursery has existed ever since. The federal government and a number of other states have followed suit in developing programs that, to varying degrees, give mothers and infants an opportunity to remain together until the infant reaches a particular age. The requirements for such programs vary by state but generally only permit women with nonviolent criminal histories to take part. Some states have instituted alternative community-based residential parenting programs that fall between halfway houses and prisons; others have segmented off the prison to build a nursery that will hold both mothers and babies.

These institutions recognize the emotional value of allowing mother and child to bond, while simultaneously giving incarcerated mothers an opportunity to learn about the basics of being a parent, both from a practical and an emotional standpoint. On the other hand, many onlookers take offense at the thought of young children being imprisoned for their mothers’ crimes. Why are women allowed to reside with their children, despite committing a punishable act? State governments, along with the federal government, have weighed these issues when creating such programs, and, in the process, have ultimately concluded that keeping families together outweighs the retributive value of incarceration. While nontraditional, this approach to imprisonment is useful for both its deterrent and rehabilitative aspects and may even create multigenerational benefits.

As the female prison population continues to grow, many have argued for increasing the number of facilities that offer alternative prison programs for pregnant women. In 2009, 6.9% of U.S. prisoners were women, according to the U.S. Department of Justice. In 2004, 4% of women in state prisons, 3% of women in federal prisons, and 6% of women in jails were pregnant. A large majority of women in this group also have at least one child under the age of eighteen at home, and many are single parents. Conversely, less than one in five incarcerated men are single parents. A number of scholars have investigated the societal impact of these family arrangements and have found that, while children whose fathers are incarcerated more often than not live with their mothers, children whose mothers are incarcerated typically live with a nonparent family member or become part of the foster care system.

Studies have shown that children who fail to sufficiently bond with their mothers are more likely to suffer from developmental delays, an inability to connect with others, and a greater likelihood of being convicted of a crime later in life. Consequently, it is difficult not to wonder whether incarcerating mothers is more detrimental for the mother or the child. Considering these negative effects, many children may believe they are the ones being punished for their mothers’ crimes. While children who are left with their fathers or other relatives may be subject to poverty, a lack of stimulation, violence, non-nutritious food, or any number of other negative side effects, the in-prison or alternative programs would, in an ideal world, give children a stable, nurturing environment in which they are given significant attention and at least three meals a day. Even though they are surrounded by concrete walls and barbed wire, these babies may ultimately have a better opportunity to begin their lives on the right foot than those children who are separated from their mothers and sent out into the world. Furthermore, using community-based residential parenting programs as a transitional tool equips both mother and child with a sturdy foundation before releasing them into regular society. This Note advocates a hybrid approach to alternative prison programs in which community-based residential parenting programs are not used in lieu of, but in addition to prison nurseries. The combination of the two approaches would maximize the individual emotional benefits to both mother and child and the more general societal benefits while being less susceptible to political criticism.

Part I examines the effects prison nurseries and community-based residential parenting programs can have on the cognitive and emotional well-being of both the mother and child in arguing that these programs are beneficial to both parties. Part II explores some of the existing programs and looks to empirical evidence in determining whether the states and federal government have instituted programs that best cater to the emotional needs of mothers and babies. Part III argues for the combined use of these programs to ensure a socially appealing punishment and a logical transitional period for mother and child. Finally, Part IV addresses the arguments against prison nurseries and community-based residential parenting programs and concludes that the individual and societal benefits of these programs outweigh the financial burdens and moral opposition.