In the Matter of Arisleda Duarte, Respondent,v.City of New York, Appellant.BriefN.Y.February 14, 2013STATE OF NEW YORK COURT OF APPEALS --------------------------------------------------------------x In the Matter of the Application of x x ARISLEDA DUARTE, x x Petitioner-Respondent, x x For an Order Pursuant to Article 78 of the x New York Civil Practice Law and Rules, x x —against— x x THE CITY OF NEW YORK, x Respondent-Appellant x --------------------------------------------------------------x AMICUS CURIAE BRIEF OF COLUMBIA LAW SCHOOL PRISONERS AND FAMILIES CLINIC MORNINGSIDE HEIGHTS LEGAL SERVICES, INC. Columbia Law School, Prisoners and Families Clinic Philip M. Genty, Esq. pgenty@law.columbia.edu 435 West 116th Street New York, New York 10027 (212) 854-3123 On the brief: Stephen Farrelly, Ph.D. ’13 and Julia Gomez ’13 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................i PRELIMINARY STATEMENT .................................................................... 1 ARGUMENT.................................................................................................. 1 I. INTRODUCTION................................................................................. 1 II. BACKGROUND ON JAIL AND PRISON NURSERIES................... 3 A. Jail and Prison Nurseries in New York........................................... 3 B. History and Role of Jail and Prison Nursery Program ................... 6 III. JAIL AND PRISON NURSERIES SERVE AS ENVIRONMENTS FOR CREATING SECURE ATTACHMENT BETWEEN INFANTS AND THEIR MOTHERS.......................................................................... 12 A. Background on the Development of Attachment Theory............. 12 B. Recent Studies on Attachment Theory ......................................... 15 C. Jail and Prison Nursery Programs Help Foster the Mother-Child Relationship ............................................................................................ 16 IV. PARTICIPATION IN JAIL AND PRISON NURSERY PROGRAMS CREATES LONG-TERM DESIRABLE EFFECTS FOR INFANTS AND THEIR MOTHERS........................................................ 22 A. Studies of Children Who Participate in Jail and Prison Nursery Programs Demonstrate That Parents Frequently Reunite With Children ......................................................................................... 23 B. Nurseries Mitigate Risks That Children of Incarcerated Parents Otherwise Face ....................................................................................... 27 V. THERE IS A LACK OF SUITABLE ALTERNATIVES TO JAIL AND PRISON NURSERY PROGRAMS................................................. 32 VI. CONCLUSION ............................................................................... 37 TABLE OF AUTHORITIES Cases Cooper v. Morin, 49 N.Y.2d 69 (1979) ...................................................... 8, 9 Statutes New York State Correct. Law Art. 22, § 611 ................................. 7, 8, 10, 35 Agency Directives, Orders, and Other Administrative Materials Bedford Hills Correctional Facility, Nursery Manual (June 2006) ....... 10, 11 City of New York Department of Correction, Rose M. Singer Center Command Level Order: The Nursery Program (May 7, 2005)................. 10 New York State Department of Corrections and Community Supervision, Directive 0046: Bedford Hills Correctional Facility (May 14, 2012)....... 20 New York State Department of Correctional Services Facilities Map, New York State Department of Corrections (Oct. 9, 2009), available at http://www.doccs.ny.gov/facilitymapcolor.pdf. ........................................ 33 Books Nell Bernstein, ALL ALONE IN THE WORLD (2005) ...................................... 30 Articles Sytske Besemer, et al, The Relationship Between Parental Imprisonment and Offspring Offending in England and the Netherlands, 51 Brit. J. Criminol. 413 (2011).................................................................................................. 28 Stacey M. Bouchet, Ph.D., Children and Families with Financial Hardships, The Annie E. Casey Foundation 3 (2008), available at http://www.f2f.ca.gov/res/pdf/ChildrenAndFamilies.pdf ......................... 16 Chesa Boudin, Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship, 101 J. Crim. L & Criminology 77 (2011)......................................................................................................... 33 Inge Bretherton, The Origins of Attachment Theory: John Bowlby and Mary Ainsworth, 28 Developmental Psychology 759 (1992)................. 13, 14, 23 i Mary Byrne, Lorie Goshin & S.S. Joestl, Intergenerational Transmission of Attachment for Infants Raised in a Prison Nursery, 12 Attach. Hum. Dev. 375 (2010).................................................................................................. 36 Mary Byrne, Lorie Goshin & Barbara Blanchard-Lewis, Maternal Separation During the Reentry Years for 100 Infants Raised in a Prison Nursery, 50 Fam. Ct. Rev. 77 (Jan., 2012).............................. 23, 24, 25, 26 Leslie Flowers, Prison Babies: Columbia University Researcher First to Study Life of Mothers and Babies Behind Bars, Nurse.com (Nov. 17, 2008) , available at http://news.nurse.com/article/20081117/NATIONAL02/311170015/- 1/frontpage ................................................................................................... 4 Lorie Smith Goshin & Mary Woods Byrne, Converging Streams of Opportunity for Prison Nursery Programs in the United States, 48 Journal of Offender Rehabilitation 271 (2009) .......................................... 15, 17, 29 Anne E. Jbara, The Price They Pay: The Mother-Child Relationship Through the Use of Prison Nurseries and Residential Parenting Programs, 87 Ind. L.J. 1825 (2012). ........................................................................... 28 Corey Kilgannon, Taking the Bus to Rikers Island (and Back, Too), N.Y. Times (Feb. 13, 2006), available at http://travel.nytimes.com/2006/02/13/nyregion/13rikers.html?_r=0 ........ 33 Solangel Maldonado, Recidivism and Paternal Engagement, 40 Fam. L. Q. 191 (2006).................................................................................................. 31 Nicole Mauskopf, Reaching Beyond the Bars: An Analysis of Prison Nurseries, 5 Cardozo Women’s L. J. 101 (1998 ........................... 18, 19, 31 Joseph Murray & David P. Farrington, The Effects of Parental Imprisonment on Children, in 37 Crime and Justice: A Review of Research (M. Tonry, ed., 2008) ............................................................................................. 27, 28 Antonia M. Nelson, R.N.C., M.S.N., Ph.D., A Metasynthesis of Qualitative Breastfeeding Studies, 51 Journal of Midwifery & Women’s Health e13 (2010) ........................................................................................................ 21 Note, Alternative Sanctions for Female Offenders, 111 Harv. L. Rev. 1921 (1998)......................................................................................................... 29 J. M. Pollock, Parenting Programs in Women’s Prisons, 14 Women & Criminal Justice 131 (2002). ....................................................................... 6 ii Myrna S. Raeder, Gender-Related Issues in a Post-Booker Federal Guidelines World, 37 McGeorge L. Rev. 691 (2006). .............................. 31 L. Alan Sroufe, Elizabeth A. Carlson, Alissa K. Levy & Byron Englad, Implications of Attachment Theory for Developmental Psychopathology, 11 Development and Psychopathology 1 (1999)........................... 13, 35, 36 Linda Wertheimer, Prenatal Care Behind Bars, NPR (Nov. 5, 2005), available at http://www.npr.org/templates/story/story.php?storyId=4990886 ..... 4, 5, 20 Sarah Yager, Prison Bonds: Nursery Programs Foster Mother-Child Relationships Behind Bars, Broad Recognition: A Feminist Magazine at Yale (Jan. 3, 2011), available at http://broadrecognition.com/politics/prison-bonds-nursery-programs- foster-mother-child-relationships-behind-bars/............................... 5, 20, 21 Reports About DOC: Facilities Overview, City of New York Department of Correction (2012), available at http://www.nyc.gov/html/doc/html/about/facilities_overview.shtml ......... 9 Correctional Association of New York, Bedford Hills Correctional Facility 4 (May 2006), available at http://www.correctionalassociation.org/wp- content/uploads/2012/05/bedford_2005.pdf................................................ 4 Correctional Association of New York, Women in Prison Project: Imprisonment and Families Fact Sheet (April 2009), available at http://www.prisonpolicy.org/scans/Families_Fact_Sheet_2009_FINAL.pdf ................................................................................................................... 35 Female Inmates in NYC Benefit From the Rose M. Singer Nursery Program, Corizon Health (Oct. 15, 2012), available at http://www.correctionalhealthcareblog.com/2012/10/female-inmates-in- nyc-benefit-from-the-rose-m-singer-nursery-program.............. 5, 10, 20, 21 L. E. Glaze and L. M. Maruschak, Parents in Prison and their Minor Children (NCJ Publication No. 222984), Washington, D.C.: Bureau of Justice Statistics, 2008............................................................... 6, 29, 30, 34 iii iv Guidelines for Successful Breastfeeding, Palo Alto Medical Foundation (2012), available at http://www.pamf.org/children/newborns/feeding/successful.html ........... 34 Incarcerated Parents and Their Children: Trends 1991-2007, The Sentencing Project 7 (Feb. 2009), available at http://www.sentencingproject.org/doc/publications/publications/inc_ incarceratedparents.pdf.............................................................................. 32 Medical Staff at the Pediatric Unit, Westchester Institute for Human Development (2012), available at http://wihd.org/page.aspx?pid=771#.ULw0wINTy8A ............................... 4 New York State Department of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2009, 4 (Aug. 2009), available at http://www.prisonpolicy.org/scans/nydocs/UnderCustody_Report2009.pdf ................................................................................................................... 33 New York State Department of Corrections and Community Supervision, Division of Program Planning, Research and Evaluation, Profile and Three Year Follow-Up of Bedford Hills and Taconic Nursery Program Participants: 1997 and 1998 (2002).................................................... passim Women’s Prison Association: Institute on Women & Criminal Justice, Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community Based Alternatives 9 (May 2009), available at http://wpaonline.org/pdf/Mothers%20Infants%20and%20Imprisonment%2 02009.pdf ................................................................................... 8, 10, 11, 21 World Health Organization, Evidence on the Long-term Effects of Breastfeeding (2007), available at http://whqlibdoc.who.int/publications/2007/9789241595230_eng.pdf .................................................................................................. 21, 22, 34 PRELIMINARY STATEMENT This brief is submitted on behalf of Columbia Law School’s Prisoners and Families Clinic. The brief supports Petitioner-Respondent’s argument that jail and prison administrators must make a best interest of the child analysis when deciding whether or not to admit an individual to the nursery program. The brief highlights the fundamental importance of jail and prison nurseries in securing the welfare of children of incarcerated mothers. In light of the role these nurseries play in creating a secure attachment between mothers and their children, as well as the long-term desirable effects the nurseries have on both prisoners and their children, we urge the Court to follow the decisions of the lower courts in affirming that the appropriate criterion for determining a mother’s eligibility for a nursery is the best interest of the child. ARGUMENT I. INTRODUCTION Through its system of jail and prison nurseries, New York demonstrates its long-standing and continuous commitment to fostering the mother-child bond, even when a mother is incarcerated.1 By creating a safe 1 New York City jails are run by the New York City Department of Correction (“NYCDOC”), while New York State prisons are run by the Department of Corrections and Community Supervision (“DOCCS”). 1 and stable environment in which children are cared for and mothers learn basic parenting skills, the jail and prison nursery system enables children to form secure attachments to their mothers, women who have demonstrated the desire and commitment to preserve a parental relationship with their children and reunite with them upon release. Secure attachment, in turn, is a reliable indicator of positive future outcomes for children. Children denied access to nurseries, and hence deprived of the chance to bond with their mothers, may be at higher risk for a series of negative outcomes, including poor performance in school, drug and alcohol abuse, and an increased chance of interaction with the criminal justice system. Since pregnant women comprise a portion of the jail and prison populations, New York’s nursery system thus provides a workable solution to a difficult social problem, a solution that improves the life chances of children of incarcerated parents. The purpose of this amicus brief is to outline the potential benefits that accrue both to children and to mothers who participate in a jail and prison nursery program, regardless of the criminal histories or pending criminal charges faced by the mothers. In the first section, the brief provides a short description of the nurseries, highlighting how they actually function and exploring the history by which the system became established in New 2 York. The second section provides a description of the contemporaneous benefits that accrue to children through participation in the nursery program. It explains these benefits in terms of attachment theory, the hypothesis that a secure bond between a child and her or his primary caregiver results in positive outcomes, whereas the interruption of such a bond has a long-term negative impact on children. The third section explores the long-term effects of secure attachment by showing how participation in a nursery program can mitigate the risks caused by parental incarceration. II. BACKGROUND ON JAIL AND PRISON NURSERIES A. Jail and Prison Nurseries in New York It can be hard to imagine how a nursery program functions in a correctional institution. In New York State, there are nurseries in the state Bedford Hills prison and the New York City jail at the Rose M. Singer Center on Rikers Island.2 The nursery at Bedford Hills includes both a communal area and separate housing facilities for the participant mothers and their children. The communal area consists of a large, well-lit room that contains toys, games, and stuffed animals. A large section of the floor is purposefully carpeted so that the children can begin to crawl and toddle 2 This brief draws primarily on data from the nursery program at Bedford Hills because it has been the subject of several academic studies, making data more readily accessible. The Rikers Island facility is similar in relevant regards. 3 around. The entire nursery, including the dormitories in which the women live with their children, is separated from the rest of the prison. Participant mothers and their children sleep in individual rooms, with two mothers and two cribs to a room.3 The walls of these rooms are decorated with bright posters and colorful paintings. Because the mothers are placed in the same room as their children, the mothers are able to tend to the children throughout the night; they can get up freely to nurse and comfort the children. In order to ensure the safety of the infants, the prison nursery at Bedford Hills is subject to constant supervision by correctional officers. These officers are present in the nursery at all times and additional staff include civilians and long-term inmates who have been trained as caregivers to care for the infants while their mothers attend classes,4 as well as a pediatrician who comes in every other week.5 The mothers must not only 3 Linda Wertheimer, Prenatal Care Behind Bars, NPR (Nov. 5, 2005), available at http://www.npr.org/templates/story/story.php?storyId=4990886. 4 Leslie Flowers, Prison Babies: Columbia University Researcher First to Study Life of Mothers and Babies Behind Bars, Nurse.com (Nov. 17, 2008), available at http://news.nurse.com/article/20081117/NATIONAL02/311170015/-1/frontpage. 5 See The Correctional Association of New York, Bedford Hills Correctional Facility 4 (May 2006), available at http://www.correctionalassociation.org/wp- content/uploads/2012/05/bedford_2005.pdf; Medical Staff at the Pediatric Unit, Westchester Institute for Human Development (2012), available at http://wihd.org/page.aspx?pid=771#.ULw0wINTy8A (noting that Janet Sockheim, MD, MPH, “provides pediatric services to the infants who reside with their incarcerated mothers at the Bedford Hills Correctional Facility”). 4 abide by the general rules of the correctional facility but are also required to comply with specific nursery regulations in order to remain participants. Because of the strict oversight, security concerns are mitigated. The Bedford Hills Nursery Program, like that of the Rose M. Singer Center on Rikers Island (“RMSC Nursery Program”), provides a chance for mothers to learn and practice parenting skills and for children to form strong attachments to their mothers. At Bedford Hills, mothers are on a strict schedule: they wake up early, feed, bathe and dress their children, complete chores, and attend classes or prison jobs.6 The program provides childcare so that the women may work on acquiring their GEDs or other degrees, learn office skills and take parenting classes.7 Similarly, the RMSC Nursery Program offers a wide variety of programming, including parenting classes, lactation classes, baby and mother exercise classes and transition workshops, all conducted by the team of doctors and social workers on staff in the nursery.8 Mothers can immediately put into practice the skills acquired and 6 Wertheimer, supra note 3. 7 Sarah Yager, Prison Bonds: Nursery Programs Foster Mother-Child Relationships Behind Bars, Broad Recognition: A Feminist Magazine at Yale (Jan. 3, 2011), available at http://broadrecognition.com/politics/prison-bonds-nursery-programs-foster-mother- child-relationships-behind-bars/. 8 Female Inmates in NYC Benefit From the Rose M. Singer Nursery Program, Corizon Health (Oct. 15, 2012) [hereinafter Corizon Health], available at http://www.correctionalhealthcareblog.com/2012/10/female-inmates-in-nyc-benefit- from-the-rose-m-singer-nursery-program/ (Corizon Health is the current healthcare provider at the Rose M. Singer Correctional Facility). 5 honed in group parenting workshops, creating a pattern of practiced parenting that they can employ in the future. Thus, both the Bedford Hills and RMSC Nursery Programs are designed to foster more secure children and better parents, a benefit not only to participants but to New York State generally. B. History and Role of Jail and Prison Nursery Program To understand the role of jail and prison nurseries, it is important to recognize the place they occupy in the correctional system as a whole. In the United States, approximately 6% of incarcerated mothers have children under two years of age.9 Somewhere between 4% and 10% of incarcerated women are pregnant upon intake.10 For these children, maternal incarceration can have particularly devastating effects. Enforced separation at birth would rob them of the chance to form a bond with their primary caregiver and might threaten them with a variety of environmental stresses whose effects in later life could be deeply harmful. Nationally, jail and prison nursery systems have sought to mitigate some of these potential harms since their inception. 9 L. E. Glaze and L. M. Maruschak, Parents in Prison and their Minor Children, (NCJ Publication No. 222984), Washington, D.C.: Bureau of Justice Statistics, 2008. 10 Id. See also J. M. Pollock, Parenting Programs in Women’s Prisons, 14 Women & Criminal Justice 131, 131-154 (2002). 6 In New York, the numbers are similar. The New York State Department of Corrections and Community Supervision (“DOCCS”) has released a statistical overview of the 179 women who participated in the nursery programs at Bedford Hills and Taconic during 1997 and 1998.11 Most of the participants (83%) already had one living child upon admission to DOCCS.12 More importantly, “most of the participants gave birth to children while they were participants in the Nursery Program.”13 The average age of participants was 30 years, though ages ranged from 16 to 45.14 The average minimum sentence for the participants was 32 months, and the average maximum sentence varied between facilities from 77 months (Bedford Hills) to 67 months (Taconic).15 New York’s commitment to prison nurseries dates back to 1901, when the Bedford Hills facility opened its nursery. The commitment was codified into law in 1930 when then-Governor Franklin Roosevelt signed Correction Law Article 22, Section 611.16 This statutory commitment places New York 11 See New York State Department of Corrections and Community Supervision, Division of Program Planning, Research and Evaluation, Profile and Three Year Follow-Up of Bedford Hills and Taconic Nursery Program Participants: 1997 and 1998 (2002). The nursery at Taconic Correctional Facility was recently closed. 12 Id. at 10. 13 Id at 10, n. 2. 14 Id. at 16, Table 9. 15 Id. 16 N.Y. Correct. Law Art. 22, § 611. 7 within a small family of states that provide jail and prison nurseries.17 Section 611 mandates that pregnant prisoners be provided with “comfortable accommodations, maintenance and medical care” for giving birth and that, once born, a child “be returned with its mother to the correctional institution in which the mother is confined…for such period as seems desirable for the welfare of such child, but not after it is one year of age….” The statute goes on to state that in certain circumstances an infant may remain with the mother for up to eighteen months.18 By conditioning participation on “the welfare of the child,” Section 611 makes clear both that the interests of the child are paramount and that those interests may best be served by fostering the mother-child relationship even within the confines of a prison. By providing a stable, safe environment in which children are cared for and mothers learn basic parenting skills, New York’s correctional facility nurseries give institutional embodiment to the belief that parenting is a fundamental right and that this relationship cannot be usurped by the state. As this Court recognized in Cooper v. Morin with regard to pre-trial 17 In 2009, seven states maintained some form of prison nursery program. Although other states have slightly more liberal policies—Washington, for example, incorporates Head Start programs and permits children to remain in the nursery for up to three years—no other state has exhibited the long-standing and continuous commitment to prison-based child care that New York does. See Women’s Prison Association: Institute on Women & Criminal Justice, Mothers, Infants and Imprisonment: A National Look at Prison Nurseries and Community Based Alternatives 9 (May 2009) [hereafter WPA], available at http://wpaonline.org/pdf/Mothers%20Infants%20and%20Imprisonment%202009.pdf. 18 See N.Y. Correct. Law Art. 22, § 611(1) and (2). 8 detainees, the rights to bear and rear children are “fundamental rights” deserving of protection under the New York State Constitution.19 Correctional facility nurseries lend institutional reality to these otherwise abstract rights by creating an environment in which mothers can exercise those rights within the confines of the jail or prison. There are two prison nursery programs in New York: a New York City jail nursery at the Rose M. Singer Center (RMSC) on Rikers Island, and a New York State prison nursery at Bedford Hills Correctional Facility. Mothers and children at both RMSC and Bedford Hills have ready access to medical care. By Command Level Order, the City of New York Department of Correction opened the first jail-based nursery on Rikers Island in 1985.20 The order permits any woman having reached her sixth month of pregnancy or nursing an infant less than one year of age during her incarceration at Rikers Island to apply to the program. The Order includes women awaiting trial or transfer to Bedford Hills or Taconic.21 19 Cooper v. Morin, 49 N.Y.2d 69, 80 (1979). 20 About DOC: Facilities Overview, City of New York Department of Correction (2012), available at http://www.nyc.gov/html/doc/html/about/facilities_overview.shtml. 21 WPA, supra note 17, at 33. As noted above, the nursery at Taconic Correctional Facility was recently closed. 9 The Order makes clear that, in accord with Correction Law Section 611, the standards for review and evaluation of the application to the nursery “shall be ‘in the best interest of the child and children currently in the Nursery Program.’”22 As part of the application process, a medical and mental evaluation is conducted as well as an investigation by the Administration for Children Services.23 The nursery can house up to fourteen mothers and fifteen infants.24 As previously noted, Section 611 of the Correction Law allows children to remain with their mothers for twelve months after birth, or up to eighteen months if the mother is to be released shortly after the end of the twelve month period.25 New York State Department of Corrections and Community Supervision runs the program at Bedford Hills. Bedford Hills can house up to 29 mother/infant pairs.26 To be admitted into this program, prison administrators must conduct a best interest of the child analysis.27 In conducting this analysis, they consider, in part, who is going to have custody 22 The City of New York Department of Correction, Rose M. Singer Center Command Level Order: The Nursery Program 8 (May 7, 2005), Record on Appeal at 53. 23 Id. at 3 (Record on Appeal at 48); See also, WPA, supra note 17, at 33. 24 Corizon Health, supra note 8. 25 N.Y. Correct. Law Art. 22, § 611(2). 26 See WPA, supra note 17. 27 See Bedford Hills Correctional Facility, Nursery Manual (June 2006) at 1. 10 of the child if the child does not participate in the nursery program, whether the mother has a history of involvement in the child-welfare system, the length of the mother’s sentence, past episodes of incarceration, and the nature of the mother’s conviction.28 At both the RMSC and Bedford Hills programs, if a mother has a history of child abuse, she is ineligible to participate. In addition, at both programs, the mother must give birth in the nursery in order to qualify.29 New York’s jail and prison nursery system is obviously not a cure-all. Rather, it provides children with up to eighteen months of stability in an environment designed to encourage healthy parenting. It is an environment to which many of these children might otherwise never have access. Furthermore, the nursery programs are designed to target those children who will most likely be reunited with their mothers upon release,30 enabling participating children to establish a strong, nearly uninterrupted bond with the persons who will, in all likelihood, be their primary caretakers for the remainder of their lives. 28 See id. at 1-2. 29 See WPA, supra note 17. 30 See infra Part IVA. for a discussion of reunification rates at Bedford Hills. See also Bedford Hills Correctional Facility, Nursery Manual, supra note 27, at 2. 11 III. JAIL AND PRISON NURSERIES SERVE AS ENVIRONMENTS FOR CREATING SECURE ATTACHMENT BETWEEN INFANTS AND THEIR MOTHERS The role that nurseries play in laying a secure developmental foundation for the child of an incarcerated parent can best be explained through an introduction to established theories of early childhood development such as attachment theory. Attachment theory, as proposed by developmental psychologists and pediatricians, explains the crucial significance of the mother-child bond in the earliest developmental stages of a child. The following section outlines the basic tenets of attachment theory (Sections A and B) and then turns to a look at the way in which jail and prison nurseries in New York foster the mother-child relationship in order to ensure secure attachment, in addition to providing resources necessary for the physical development of the child (Section C). A. Background on the Development of Attachment Theory Attachment theory first came to prominence in the 1940’s through the work of John Bowlby, a British psychologist. Bowlby’s early work, conducted in the context of working with British children prone to delinquency, hypothesized a possible link between delinquency and some 12 form of parental deprivation.31 Bowlby focused primarily on mother-child separation, since this was a definite event that was easier to document than subtle influences on familial interaction.32 In short, Bowlby suggested that separating a child from her or his mother can contribute to delinquency in the child later in life. In one of Bowlby’s early studies on mother-child separation, he concluded that, in order for children to grow up with good mental health, “the infant and young child should experience warm, intimate, and continuous relationship with his mother (or permanent mother substitute) in which both find satisfaction and enjoyment.”33 He later went on to publish three papers regarding what he now referred to as attachment theory, concluding in his last that an individual’s inability to form relationships with others later in life may result when there is a frequent succession of parental substitutes.34 By focusing on mother-child separation, attachment theory is particularly relevant to correctional facility nurseries because incarceration otherwise leads directly to separation from the mother. 31 See L. Alan Sroufe, Elizabeth A. Carlson, Alissa K. Levy & Byron Englad, Implications of Attachment Theory for Developmental Psychopathology, 11 Development and Psychopathology 1, 1 (1999). 32 Inge Bretherton, The Origins of Attachment Theory: John Bowlby and Mary Ainsworth, 28 Developmental Psychology 759, 760 (1992). 33 Id. at 761 (quoting Bowlby, J. Maternal Care and Mental Health, World Health Organization Monograph 13 (Serial. No.2 1951)). 34 Id. at 763. 13 Mary Ainsworth, an American-Canadian psychologist who worked at Johns Hopkins University and at the University of Virginia in the 1960’s and 1970’s, further developed the theory.35 She distinguished three different forms that attachment may take: securely attached infants, insecurely attached infants, and not-yet attached infants.36 Her studies showed that children who were categorized as securely attached cried less and explored their surroundings in the presence of their mother.37 Children whom she classified as insecurely attached cried frequently, even when their mother was around, and explored little.38 Not-yet attached children exhibited no differential behavior to their mother.39 As exploration is an integral part of early childhood development, the lack of exploration in children who failed to attach securely to their mothers indicated a developmental deficit. The effects of insecure attachment do not stop at early life stages. Later studies have explored the ways in which these various forms of 35 In her study A Strange Situation, Ainsworth observed mothers interact with their infant children, followed by a removal of the mother from the room, the introduction of a stranger, and the reunification of the mother and child. Although this study did not deal with more permanent separation, it did reveal some patterns about a child’s relationship to its mother. She found that children that were ambivalent toward their mother upon her return had a less harmonious relationship with her at home. Through this study, Ainsworth developed the Strange Situation scoring system, which is used by researchers to measure the level of attachment between a mother and child. Bretherton, supra note 32, at 765. 36 Id. at 764. 37 Id. 38 Id. 39 Id. 14 attachment, particularly secure and insecure attachment, impact a child later in life. B. Recent Studies on Attachment Theory More recent studies on attachment theory have focused on attachment as an important factor among many that influence outcomes for children later in life. Other factors that influence outcomes include environmental stressors such as poverty or exposure to violence. Studies have indicated that secure attachment mitigates the harms caused by these other environmental stressors while also indicating the inverse, that is that stable and healthy environments may succeed in mollifying the effects of poor infant-mother attachment.40 Secure attachment has been described as a “mediator” that makes a child more resilient when encountering the stresses caused by, for instance, poverty.41 These findings are very important when discussing the children of incarcerated parents, since these children are more 40 Longitudinal studies by L. Alan Sroufe, a psychologist at the University of Minnesota, and his colleagues have found that the failure to form a secure attachment relationship with a primary caregiver can have a negative effect on the later development of the child, while later experiences, including later familial stability or separation, can either improve or worsen these effects. Further, Sroufe has found that the formation of secure attachment relationships between mothers and children living in poverty can significantly mitigate the effects of poverty on child development. Lorie Smith Goshin & Mary Woods Byrne, Converging Streams of Opportunity for Prison Nursery Programs in the United States, 48 Journal of Offender Rehabilitation 271, 281 (2009) [hereinafter Converging Streams of Opportunity]. 41 Id. 15 likely to be exposed to environmental stressors such as increased financial instability and financial hardship as a result of their mothers’ incarceration.42 Thus, there is no doubt that it is in the best interest of an infant to develop a secure attachment relationship to a primary caregiver even if, and perhaps especially when, that person is incarcerated. Jail and prison nursery programs in New York are structured in a way meant to ensure that children of incarcerated women develop this attachment, providing them with an advantage when tackling future difficulties. C. Jail and Prison Nursery Programs Help Foster the Mother- Child Relationship The psychological benefits to the child of being in a jail or prison nursery derive in large part from the formation of a secure attachment relationship to the child’s mother. This hypothesis is borne out in the work of Dr. Mary Byrne, Professor of Clinical Nursing at Columbia University.43 Byrne’s work focuses on incarcerated mothers. She concludes that secure attachment requires the presence of a primary caregiver (as opposed to successive caregivers) and that the caregiver exhibit sensitivity to the 42 Stacey M. Bouchet, Ph.D., Children and Families with Financial Hardships, The Annie E. Casey Foundation 3 (2008), available at http://www.f2f.ca.gov/res/pdf/ChildrenAndFamilies.pdf. 43 Mary Byrne, Ph.D., C.P.N.P., M.P.H., F.A.A.N., is a Professor of Clinical Nursing at the Columbia University School of Nursing. 16 child.44 Through its programming, the prison nursery ensures that both of these requirements are fulfilled. As Byrne has observed, many mothers in prison nurseries themselves failed ave others’ care- giving by providing mothers with skills that they may never have learned. to form secure attachments to their own parents.45 A mother who herself did not form a secure attachment relationship with a parent may h trouble forming this relationship with her child.46 By providing incarcerated mothers with parenting classes and supervision during the first year of the infant’s life, nurseries provide the mother with the skills necessary to bond with her child. Such mothers also have access to mental health counseling to aid in the formation of secure attachment between the parent and child, a resource they might otherwise not be able to access.47 Jail and prison nurseries also enhance the quality of the m 44 See Converging Streams of Opportunity, supra note 40, at 271. 45 Id. at 278-79 (“Mothers’ internal representation of attachment to their own parent figures, measured by the Adult Attachment Interview and compared to normative samples, identified disproportionately large numbers of women who were themselves insecurely attached, lacked autonomy and had unresolved trauma, characteristics that would make it unlikely that they could transmit attachment to their infants.”) (citing Erik Hesse, The Adult Attachment Interview: Historical and Current Perspectives, in The Handbook of Attachment: Theory, Research and Clinical Applications 395-433 (Cassidy, J, Shaver P, eds., 1999)). 46 Id. at 279. 47 See supra Part II.A.; see also Converging Streams of Opportunity, supra note 40, at 279 ([F]ollowing intervention of the prison nursery’s required parenting education programs enhanced by the research team’s weekly Nurse Practitioner visits the proportion of infants as securely attached by the classic Strange Situation Procedure vastly exceeded theoretical expectations.”). 17 By pro g ng release. “At the Bedfo ng or pris viding food, housing and parenting classes, these nurseries ensure a stable and safe environment for children whose infancy may otherwise be marked by instability and economic difficulties. As Nicole Mauskopf remarks with regard to New York, “At the Bedford Hills Facility everythin that a mother needs for her baby is given to her without charge, includi diapers, strollers, baby food, formula and health care.”48 Further, the mother is provided with the kind of training that enables her to be a more successful mother both in prison and after rd Hills facility, women who have their babies with them in prison are taught to be mothers through mandatory classes which teach them how to tend to the physical and emotional needs of their children.”49 This latter form of training can have important effects well beyond the prison walls. For mothers who resume their role as primary caregivers, the traini they receive while incarcerated leads to better parenting once they leave jail on. As DOCCS reports, the majority of children who participate in the state nursery program resume living with their mothers upon release.50 These mothers stand to benefit from the training they receive. Most of the 48 See Nicole Mauskopf, Reaching Beyond the Bars: An Analysis of Prison Nurseries, 5 Cardozo Women’s L. J. 101, 108 (1998). and Evaluation, supra note 11, at 19, Table 49 Id. 50 Division of Program Planning, Research 12. 18 participants in the program lack even a high school diploma.51 Training targeted at developing practical parenting skills thus prepares them to succeed once they have left the prison. Mauskopf draws on the reports of people who work closely with Bedford Hills women to explain the tran sformations that occur during a othe , has discovered that having babies in prison has brought about many alike have had to break out of conventional roles and women who once paraded as ‘tough guys’ belong t rs and th psych ements m r’s stay in the prison nursery: [Former] Superintendant Elaine Lord, of the Bedford Hills facility changes. “Guards and inmates blossom.” Providing a psychological point of view, advocate Sister Elaine Roulet, who works at the Bedford Hills facility, says, “that the most important years of our lives is [the] first year. The babies with their mothers.” Eldon Vail, superintendant at McNeil Island Corrections Center, heard about the prison nursery in New York, and went to investigate. Vail found that “the children he saw at the prison nurseries were happy, healthy, alert and developmentally advanced because their mothers were guided by people who know a lot abou raising kids, a skill which hopefully transfers to the offender.”52 Jail and prison nurseries not only provide the environment for mothe eir children to form a relationship important for the children’s ological health and development, but also provide other nutritional and health benefits that may be unavailable to the children in private plac or foster care. For example, Rikers Island provides medical care for mothers 51 Id. at 14. 52 Mauskopf, supra note 48, at 111. 19 and their infant children.53 This includes a full-time pediatrician and certified nurse.54 In addition to providing basic medical needs, the program also holds weekly baby yoga classes for mothers and their babies and counsels first time mothers with developmentally delayed children prior to age three through the Nurse Family Partnership.55 The Bedford Hills Prison Nursery similarly provides medical resources, including prenatal care, that would likely be unavailable to these mothe ty also rs were they not in prison or if their children were in private placements.56 Additionally, the facility provides clothing, diapers, bottles and even toys and strollers.57 The Bedford Hills Correctional Facili provides drug rehabilitation programs for incarcerated women58, helping women to overcome their substance dependency.59 53 Corizon Health, supra note 8. 54 Id. 55 Id. er, supra note 7. York State Department of Corrections and Community Supervision, Directive Facility (May 14, 2012), available at v/Directives/0046.pdf (noting that Bedford Hills offers a tionship with her irst time”) As a result of the drug rehabilitation 56 See Wertheimer, supra note 3. 57 Yag 58 New 0046: Bedford Hills Correctional http://www.doccs.ny.go substance abuse treatment program). 59 See, e.g.,Yager, supra note 7 (“O’Connor’s drug use wracked her rela three older children . . . Prison forced her to stick with rehab when it became difficult, and at Taconic, she breastfed for the f programs, some of these women are able to breastfeed their children which offers a number of health benefits to the child. 20 Nursery programs also allow incarcerated mothers the opportunity to breastfeed. Both the Rikers Island and Bedford Hills nurseries provide lactation classes.60 Breastfeeding has been shown to strengthen the mother- child bond in addition to providing irreplaceable nutrients necessary to the mental and physical development of the child.61 A meta-analysis of various breastfeeding studies found a number of benefits associated with breastfeeding.62 The study found that adults who had been breastfed had lower mean cholesterol levels than adults who were not breastfed as infants.63 The study also found breastfeeding was associated with a lower prevalence of obesity, increased cognitive development during childhood, and positive educational attainment for young adults.64 It is unclear whether the cognitive benefits of breastfeeding result from the nutrients provided by 60 See Corizon Health, supra note 8; WPA, supra note 17, at 10. 61 See, e.g. World Health Organization, Evidence on the Long-term Effects of Breastfeeding (2007) [hereinafter WHO], available at http://whqlibdoc.who.int/publications/2007/9789241595230_eng.pdf (A meta-analysis of various breastfeeding studies which found that there are various long-term benefits resulting from breastfeeding); Antonia M. Nelson, R.N.C., M.S.N., Ph.D., A Metasynthesis of Qualitative Breastfeeding Studies, 51 Journal of Midwifery & Women’s Health e13, e15 (2010) (A meta-analysis of various breastfeeding studies that found, among other things, that breastfeeding is an ‘engrossing,’ documenting ‘the exclusive, often intense, and emotional nature of the mother-child breastfeeding relationship.’). 62 WHO, supra note 61. 63 Id. at 22. 64 Id. at 33, 38-39. 21 breastfeeding, the mother-child relationship that develops from breastfeeding which may then contribute to this development, or both.65 Jail and prison nurseries seek to ensure that all the needs of an infant are met. In addition to providing the mother and child up to eighteen months to develop a secure attachment relationship, the nurseries offer mothers and their children resources necessary for early child development. Nurseries also positively impact the child’s life even after the completion of the program. IV. PARTICIPATION IN JAIL AND PRISON NURSERY PROGRAMS CREATES LONG-TERM DESIRABLE EFFECTS FOR INFANTS AND THEIR MOTHERS Participation in a jail or prison nursery program does not simply yield contemporaneous benefits to children and their mothers. Rather, these benefits continue to accrue to both parents and children long after the date of release. Specifically, improved attachment between mother and child provides a foundation for stable psychological development and bonding to others throughout the child’s life. Children who bond well with their parents 65 Id. at 39. 22 become adults who are more capable of replicating these strong, secure bonds with their partners and children.66 Likewise, jail and prison nurseries provide a stable environment that reduces exposure to the environmental stressors that cause suboptimal outcomes later in children’s lives. In other words, participation in such programs provides children with a psycho-social foundation that makes them more resilient and less likely to repeat the lifestyle patterns that caused the parent’s incarceration.67 These nurseries are one means to break intergenerational patterns of involvement with the criminal justice system. A. Studies of Children Who Participate in Jail and Prison Nursery Programs Demonstrate That Parents Frequently Reunite With Children While there is little direct research on the life outcomes of children who participate in correctional facility nursery programs, the limited research that has been done shows promising results. The research of Mary Byrne, Lorie Goshin, and Barbara Blanchard-Lewis provides the only 66 See studies cited in Bretherton, supra note 32, at 278-79 (“Mothers’ internal representation of attachment to their own parent figures, measured by the Adult Attachment Interview and compared to normative samples, identified disproportionately large numbers of women who were themselves insecurely attached, lacked autonomy and had unresolved trauma, characteristics that would make it unlikely that they could transmit attachment to their infants.”) (citing Erik Hesse, The Adult Attachment Interview: Historical and Current Perspectives, in The Handbook of Attachment: Theory, Research and Clinical Applications 395-433 (Cassidy, J, Shaver P, eds., 1999)). 67 See Bretherton, supra note 32. 23 significant longitudinal study of such children, but it has only reached its third year of post-release investigation.68 Nonetheless, this research already shows the powerful effect a nursery can have on the lives of incarcerated mothers and their children. The Byrne, Goshin & Blanchard-Lewis study highlights the fact that most children who participate in the prison nursery program at Bedford Hills ultimately return to the care of their mothers.69 This result is itself astonishing given the difficulties—for example, poverty and underemployment—with which formerly incarcerated people struggle. To establish this conclusion, Byrne and her colleagues studied 100 children (97 mothers, three of whom gave birth to twins) who participated in the Bedford Hills prison nursery program in the last decade. She succeeded in following most of them over the course of the three years following release. Although the children’s outcomes do not mirror outcomes of children in low-risk environments, their outcomes were superior to similarly-situated children who did not participate in the nursery program. For instance, of the 59 children who left the prison nursery with their mothers (as opposed to leaving prior to the parent’s release, either because the children reached the 68 See Mary Byrne, Lorie Goshin & Barbara Blanchard-Lewis, Maternal Separation During the Reentry Years for 100 Infants Raised in a Prison Nursery, 50 Fam. Ct. Rev. 77 (Jan., 2012) [hereinafter Maternal Separation]. 69 Id. See also Division of Program Planning, Research and Evaluation, supra note 11, at 19, Table 12. 24 statutory age limit, or at the request of the DOCCS or the mother herself), 49 children lived with their mothers after the first year post-release. At the end of the third year post-release, 44 children remained with their mothers as primary caregivers. Of those 44, 20 had experienced some separation from their mothers during the course of the three years (18 due to recidivism and 2 because of participation in drug treatment programs that did not allow children to participate).70 By contrast, of the original 100 children, DOCCS removed 14 children due to a mother’s disciplinary infractions.71 The study lost track of four of these children. The remaining 10 children were placed with family caregivers. Three years after release, three of the mothers had reunited with their children and resumed primary care and one anticipated resuming primary care upon her release. Five of the remaining mothers re-offended and lost contact with their children.72 All in all, 60 of the original mothers who participated in the nursery program either remained together or were reunited after a brief separation (due to drug treatment or some form of recidivism) three years after the initial release. In the face of the environmental stressors encountered by 70 Maternal Separation, supra note 68, at 82-83. 71 Id. at 83-84. 72 See id. at 84. 25 these mothers—including poverty, underemployment, struggles with housing, and drug relapse—Byrne, Goshin, and Blanchard-Lewis characterize the outcomes as “a true victory” that “approaches extraordinary.”73 Two significant findings of this study merit special attention. First, the prison nursery program enabled children to attach to mothers who themselves had poor attachment histories. “Findings were especially striking given the low rates of secure attachment in the mothers.”74 Likewise, the prison nursery program encouraged greater rates of secure attachment than those achieved by similarly situated populations outside of prison. “The prison sample contained significantly more secure infants than the proportion reported in seven studies of low socio-economic infants, nine studies of infants with depressed mothers, four studies of infants with drug and/or alcohol abusing mothers, and five studies of infants with maltreating mothers.”75 In other words, the results of the research conducted by Byrne, Goshin, and Blanchard-Lewis indicate that participation in the prison nursery program creates stronger, more secure attachments than would 73 Id. at 86. 74 Id. at 79. 75 Id. 26 otherwise likely occur between these mothers and their children. More important, insofar as the attachment between mother and child participants in the nursery program is more secure than the mothers’ attachments to their parents, the prison nursery program can be said to intervene in the cycle of intergenerational incarceration. B. Nurseries Mitigate Risks That Children of Incarcerated Parents Otherwise Face To see just how effective a jail or prison nursery can be, it helps to have a clear picture of the risks associated with parental incarceration. Understanding the causal mechanisms by which parental incarceration leads to poor outcomes for children helps demonstrate how jail and prison nurseries mitigate those risks. In a recent meta-analysis of the last thirty years of research on this subject, Joseph Murray and David Farrington describe the risks associated with parental incarceration: “[P]arental imprisonment is a strong risk factor (and possible cause) for a range of adverse outcomes for children, including antisocial behavior, offending, mental health problems, drug abuse, school failure, and unemployment.”76 They then go on to hypothesize possible 76 Joseph Murray & David P. Farrington, The Effects of Parental Imprisonment on Children, in 37 Crime and Justice: A Review of Research (M. Tonry, ed., 2008). This 27 causal mechanisms by which these outcomes are produced, including the trauma of parent-child separation, family poverty caused by the imprisonment, strained parenting by remaining caregivers, stigma, and stresses involved in maintaining contact with the imprisoned parent.77 Despite uncertainty about the causal mechanisms, the correlations that Murray and Farrington discover are striking. Specifically, Murray and Farrington conclude that children of prisoners have about three times the risk for antisocial behavior as their peers.78 Second, parental imprisonment is associated with at least double the risk for mental health problems for children of prisoners (as compared with children in the general population).79 Third, parental imprisonment is a strong predictor of future poor educational performance. In addition, it is a strong indicator of future unemployment.80 Fourth, parental imprisonment is a risk factor for future drug abuse.81 study is particularly useful because it summarizes the current state of research and incorporates findings from many different scholars. See also Sytske Besemer, et al, The Relationship Between Parental Imprisonment and Offspring Offending in England and the Netherlands, 51 Brit. J. Criminol. 413 (2011). Likewise, see Anne E. Jbara, The Price They Pay: The Mother-Child Relationship Through the Use of Prison Nurseries and Residential Parenting Programs, 87 Ind. L.J. 1825 (2012). 77 Murray & Farrington, supra note 76, at 135. 78 Id. at 140. 79 Id. at 158. 80 Id. at 157. 81 Id. at 161. 28 Jail and prison nursery programs interrupt the workings of two of these mechanisms. As remarked above, nurseries alleviate the trauma of separation. In the best instances, there simply is no separation because the children leave the facility with their mothers. This enables children to establish strong attachments to their primary caregivers.82 Further, as remarked above, children with strong attachments to their parents form more successful attachments later in life.83 Thus, these nursery programs may improve long-term outcomes for the children who participate. Second, jail and prison nursery programs eliminate many types of environmental stressors that can cause poor outcomes. By providing a safe, stable environment, these nurseries eliminate many of the stresses that poverty would produce for at least the first year of the child’s life. Likewise, by providing an environment separate from the jail or prison proper in which incarcerated mothers can concentrate on parenting, the difficulties of strained caregiving by third parties are eliminated. These strains can be especially pressing when mothers go to prison. The Bureau of Justice Statistics reports that when the father is incarcerated, 88% of the children live with their mother, 12% live with grandparents, and 82 Although studies report that some 85% of women who become incarcerated intend to resume the role of primary caregiver on release, the number of women who succeed in resuming the role may be slightly lower. See Note, Alternative Sanctions for Female Offenders, 111 Harv. L. Rev. 1921, 1923-24 (1998). 83 See, e.g., Converging Streams of Opportunity, supra note 40, at 278-79. 29 2% are sent to a foster home or an agency. Thus, when fathers go to prison, children tend to remain with one of their parents—the mother—in the same household. By contrast, living situations become much more disrupted when mothers go to prison. When the mother is incarcerated, 45% of children live with grandparents, 11% are sent to foster homes or agencies, and only 37% live with their fathers.84 Maternal incarceration thus tends to result in a much higher rate of foster care or the disruptions associated with moving to a grandparent’s home. In brief, children’s lives become much less stable when mothers are incarcerated. The danger of being shuffled from one home to the next is markedly higher and the economic stresses that the caregivers experience can be greater, all of which pose significant obstacles to the healthy development of children.85 By eliminating these stresses, the jail and prison nursery system increases the probability that the children will successfully complete school, avoid drug and alcohol abuse, and form stable relationships in later life. 84 See Glaze & Maruschak, supra note 9. 85 See Nell Bernstein, ALL ALONE IN THE WORLD 109-45 (2005) (detailing the slide into poverty that a caregiving family experiences when the mother is incarcerated). 30 Indirect benefits can also accrue both to children and to society when incarcerated mothers participate in nursery programs. Specifically, nursery programs can work strong rehabilitative effects on the mothers who take part. As Mauskopf discovered, Dr. T. Berry Brazelton, a pediatrician, observed that incarcerated mothers “need their infants for their own rehabilitation. Studies have shown that if…the baby is used as an incentive, 50% or more give up their addiction in favor of their baby.”86 Likewise, several studies point out that parents who retain contact with their children through visitation programs are much less likely to recidivate, which emphasizes the importance of physical interaction between parents and children...87 Most forcefully, the Department of Corrections and Community Supervision reports that the recidivism rate for participants in the nursery program was half that of the prison population as a whole. For participants, 13% recidivated within three years; for the general population at Bedford Hills and Taconic, 26% recidivated within three years.88 In addition to these concrete benefits, children provide a source of love and affection for incarcerated mothers. Insofar as these emotions 86 Mauskopf, supra note 48, at 112. 87 Solangel Maldonado, Recidivism and Paternal Engagement, 40 Fam. L. Q. 191 (2006). See also Myrna S. Raeder, Gender-Related Issues in a Post-Booker Federal Guidelines World, 37 McGeorge L. Rev. 691, 745ff (2006). 88 See Division of Program Planning, Research and Evaluation, supra note 11, at 21. 31 contribute to rehabilitation, they provide a further benefit during and after imprisonment. V. THERE IS A LACK OF SUITABLE ALTERNATIVES TO JAIL AND PRISON NURSERY PROGRAMS Alternatives to jail and prison nurseries are scarce, particularly alternatives that will ensure the secure attachment of the infant to a primary caretaker. If the mother is going to be the primary caretaker after release, ensuring the bond without the aid of a nursery program is extremely difficult. One alternative to nurseries is visitation. However, depending on the caretaker of the child as well as the distance of the correctional facility, wait time, and costs incurred, visitation can prove a very poor alternative and, in some cases, no alternative at all. In 2004, for example, 58.5% of parents in state prisons reported never receiving a visit from their children since their incarceration.89 Additionally, New York State’s largest medium security prison for women, Albion, is 89 Incarcerated Parents and Their Children: Trends 1991-2007, The Sentencing Project 7 (Feb. 2009), available at http://www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents. pdf. 32 located in upstate New York, 90 nearly 7 hours away by car from New York City. Nearly 63% of individuals incarcerated in New York State are from New York City and surrounding counties.91 It is safe to say that the likelihood that any caregiver will travel 7 hours with an infant for a visit is fairly slight. Further, even within New York City, wait times to visit someone at Rikers Island can last several hours, with some reports of wait times of up to 5 hours for one-hour visits.92 Furthermore, New York State does not have a provision for placing parents close to their home at the time of their arrest, which further complicates the accessibility of visitation.93 For children who are old enough to speak and write, there are other alternatives to nurseries such as letter writing and phone calls. However, for newborn infants, this option is impossible. 90 New York State Department of Correctional Services Facilities Map, New York State Department of Corrections (Oct. 9, 2009), available at http://www.doccs.ny.gov/facilitymapcolor.pdf. 91 New York State Department of Correctional Services, Under Custody Report: Profile of Inmate Population Under Custody on January 1, 2009, 4 (Aug. 2009), available at http://www.prisonpolicy.org/scans/nydocs/UnderCustody_Report2009.pdf. 92 Corey Kilgannon, Taking the Bus to Rikers Island (and Back, Too), N.Y. Times (Feb. 13, 2006), available at http://travel.nytimes.com/2006/02/13/nyregion/13rikers.html?_r=0. 93 Chesa Boudin, Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship, 101 J. Crim. L & Criminology 77, 101 (2011). 33 These alternatives speak only to the importance of supporting the mother-child relationship. They do not however, speak to other health benefits nurseries foster and provide. There is no current alternative, for example, to breastfeeding. If a child is not placed with her mother, she simply will not be breastfed. Even if a mother were able to successfully arrange a visitation schedule that would allow her to see her child twice a week, breastfeeding is a difficult process for some mothers, requiring practice and support.94 Additionally, failure to breastfeed on a regular basis results in pain for breastfeeding mothers.95 A look at the placement options available to children sheds some light on the lack of alternatives to jail and prison nurseries. About 45% of children of incarcerated women end up in the care of grandparent, and another 11% of children end up in foster care.96 Unlike jail and prison nurseries that offer support from doctors, nurses, counselors and caretakers, this support may not be available to a grandmother caring for children in a 94 See, e.g., WHO, supra note 61, at e15 (“The studies synthesized also document that some mothers experience difficult breastfeeding, clarifying that for these mothers, breastfeeding is ‘engrossing’ in a peculiar way as they strive to manage breastfeeding problems.”). 95 Guidelines for Successful Breastfeeding, Palo Alto Medical Foundation (2012), http://www.pamf.org/children/newborns/feeding/successful.html (urging mothers to seek medical help immediately if “[b]reasts are painfully hard and swollen” as a result of not breastfeeding infant often enough or long enough). 96 Glaze & Maruschak, supra note 9. 34 private placement arrangement or a child who may be shuttled between foster homes. In addition to the lack of alternatives to jail and prison nurseries, nurseries also significantly cut the length of separation between a mother and child as a result of incarceration. As noted above, in New York, infants may stay with their mothers in the nursery for up to twelve months, unless the mother is to be released from prison shortly thereafter, in which case the child may stay with her or his mother up to a maximum of eighteen months.97 In such situations, the mother and child are released simultaneously.98 Because the average prison sentence for women in New York is 36 months, the separation between the mother and child is shortened by one-third as a result of the child’s placement in a nursery.99 For mothers awaiting trial at Rikers Island, there may not even be any separation if the mother is not convicted and is instead released. Moreover, although separation after one year may be traumatic for a child, Sroufe has found that ensuring secure attachment at infancy is a positive factor in child development, even if later experiences may 97 N.Y. Correct. Law Art. 22, § 611 (2). 98 Id. 99 Correctional Association of New York, Women in Prison Project: Imprisonment and Families Fact Sheet (April 2009), available at http://www.prisonpolicy.org/scans/Families_Fact_Sheet_2009_FINAL.pdf. 35 negatively affect this development.100 Placing the child in a private placement arrangement or in foster care may prevent secure attachment from occurring at all. Dr. Byrne’s study found, for example, that children separated from their mothers at a young age fail to form a secure attachment relationship with either their mothers or primary caretakers.101 Thus, when weighing the costs and benefits of the effect of jail and prison nurseries on child development, allowing the child to form a secure attachment relationship with her or his mother, as opposed to failing to form a secure attachment relationship with anyone at all, is in the best interest of the child. 100 Sroufe, supra note 31. 101 M. W. Byrne, L.S. Goshin & S.S. Joestl, Intergenerational Transmission of Attachment for Infants Raised in a Prison Nursery, 12 Attach. Hum. Dev. 375, 377 (2010). 36 VI. CONCLUSION New York’s system of jail and prison nurseries has successfully tackled the dilemma of achieving penological goals while creating a safe and secure environment where infants can successfully bond with their incarcerated mothers. This provides a fundamental building block in the mental and social development of any child. The nurseries provide at-risk mothers with the training and education necessary to allow them to be better parents to their children, both during incarceration and after release, and ensure that the penal system adjusts to the needs of children affected by maternal incarceration. Although longitudinal studies on the direct impact of jail and prison nurseries are still in an early stage, the results thus far are promising. These nurseries have so far proven to be a successful tool to address the needs of infant children of incarcerated mothers, and, when in the best interests of these children, should be used to further their healthy physical and mental development. In light of the undeniable benefits to mothers, their children, and the rest of society gained through jail and prison nursery programs, it perhaps goes without saying that denying participation in such programs to infants is not a decision that should be lightly taken. Given the data explored above, children should only be denied the benefits of secure attachment if a 37 38 weighing of their best interests dictates as much. If such a best interests analysis is not required and performed, children stand to be unjustly deprived of a psychological benefit that has been shown capable of protecting them for years into their development. We therefore ask this Court to affirm the decisions of the lower courts. DATED: NEW YORK, NEW YORK December 18, 2012 Respectfully submitted, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC. Columbia Law School, Prisoners and Families Clinic Philip M. Genty, Esq. pgenty@law.columbia.edu 435 West 116th Street New York, New York 10027 (212) 854-3123 On the Brief: Stephen Farrelly, Ph.D. ’13, and Julia Gomez ’13