by Chhaya Nene

Imagine a young woman sitting in court, head pressed between her hands. She closes her eyes and hears the words, “guilty.” As the young woman looks down, the words sink in.

She has two realizations: first, she’s going to jail, and second, she will deliver her child while she is serving her sentence.

Should that mother be separated from her baby? Where will that child live? Will she be able to keep her child? Should that mother’s parental rights be terminated resulting in her child being placed into foster care?

If a mother is willing to work and learn how to take care of her child, and is declared mentally stable, should she be allowed to keep her child with her, whether it is in jail or a community program?

From 1977-2007 the number of women in jail nationally increased by 832 percent, according to the Women’s Prison Association (WPA).

Despite this dramatic rise, there is still no federal policy on how to deal with children born to mothers in jail. Some states have responded to the increase in female inmates with a concept of some controversy: Allowing incarcerated mothers convicted of nonviolent offenses to keep and raise their children in prison nurseries.

At the moment, seven states (Illinois, Indiana, Ohio, Nebraska, New York, South Dakota, and Washington) allow women in prison to keep their children for a varied length of time. Rikers Island Prison in New York City is the only jail in the United States that has an actual prison nursery.

The nurseries can be separate prison wards where mothers can bring their children while they learn parenting techniques. Other nurseries exist in community-based programs where mothers finish their sentence in homes with their children. These controversial nurseries are crucial for mother-child bonds and healthy attachment, according to a 2009 study by the Women’s Prison Association, an advocacy organization that focuses on helping women with prison records find “new possibilities”.

The report further emphasizes that a combination of nurseries and community-based residential parenting programs foster those bonds between mother and child, which result in “positive outcomes” for both.

Supporters of prison nurseries give several reasons nurseries benefit both mothers and their children, including:

1) Mothers involved in prison nursery programs return to prison less frequently than other mothers convicted of nonviolent offenses.

2) Children benefit from the early bonds they form with their mothers by exhibiting good social skills later in life.

3) Misconduct reports for mothers in nursery programs decrease.

4) In Nebraska, no mother participating in the prison nursery program has ever tested positive for drugs.

It is not a concept that is universally embraced. Jim Dwyer a law professor at the College of William and Mary, assailed prison nurseries in a paper entitled “Jailing Black Babies,” published this month by the university.

Dwyer calls the notion of prison nurseries “both morally unjustifiable and self-defeating.” He also argues that imprisoning a child for the convenience of the mother violates the 14th Amendment rights of the child. Writes Dwyer:

“If such imprisonment is ever constitutionally permissible, it can only be after an individualized determination by clear and convincing evidence that it is necessary, in order to avoid substantial harm to a particular child, for the state to place that child in prison with his or her biological mother rather than in any available non-incarceration alternative placement, including adoption. No existing prison nursery program satisfies this test.”

His paper professes little belief that the imprisoned mothers deserve the opportunity afforded by a prison nursery to live with their children. He even goes so far as to say that women fearing the harsh confines of prison would get pregnant to get into the nicer setting of a prison nursery.

“It is imaginable that women awaiting a criminal trial likely to result in a prison sentence will try to get pregnant in anticipation of incarceration,” Dwyer writes in the paper.

His proposed alternative – steer more children born to prisoners toward adoptions by terminating parental rights – is itself controversial. Few children are currently directed toward the child welfare system simply because their mothers are incarcerated, and the alternative outlined by Dwyer amounts to a redirection of that tradition.

Dwyer’s criticisms suggests that any widespread proliferation of prison nurseries may depend on more and better research on nurseries and the positive and negative effects on keeping a child in jail is vital. None of that research will likely persuade those who take the view that forcing a child to spend formative years in prison is a deprivation of basic human rights.

As the broader philosophical debate continues, for states such as California and West Virginia who are planning to open their own prison nurseries, better research and notation of the successes and failures of nurseries would provide a framework on how to create their own policies and improve upon existing programs.

–Chhaya Nene is a California-based journalist and a graduate student at the University of Southern California