Across the United States, there are hundreds of prisoners serving sentences of life without the possibility of parole for crimes committed when they were juveniles, but who now have an opportunity to be freed from newly imposed indeterminate sentences once they complete lengthy minimum terms of confinement. I am one of them.
Call us the Miller family. (After the 2003 Supreme Court Miller vs. Alabama ruling that determined imposing a life without parole sentence on a juvenile violated constitutional protections from cruel and unusual punishment.)
My original sentence was imposed for crimes that I committed when I was 14. However, in light of the Court ruling, the Washington State legislature gave prisoners like me the opportunity to be freed—provided that we are deemed by the parole board to be unlikely to “commit new criminal law violations if released.”
I must admit I rejoiced at this news after serving 20 years of a natural-life sentence. Yet as I moved closer to completing my newly imposed minimum term, I came to realize that the light at the end of the tunnel might actually be a train: my former cellmate, Anthony Powers, was denied parole even though, to many in the know, he was a model of reform.
Take the Deputy Secretary of the Department of Corrections (DOC), for example. Prior to the parole hearing, he wrote to Powers declaring:
“I recognize your contributions to making Washington State prisons safer for both offenders and staff. Your efforts have made a difference. I also believe those efforts will continue to make a difference for the men that are released back into the community [ ] I encourage you to continue to be a role model for other offenders. You have made a difference in many lives.”
Nevertheless, when Powers later underwent the requisite psychological assessment to determine whether he posed a recidivism risk, the conclusion was that he posed a high risk to reoffend.
This made me wary—for the arc of our lives had striking similarities. I too had committed a heinous crime when I was a teen. Therefore, to my mind, if it could be said that “a role model for other offenders” posed a risk to public safety, surely the same could be said for me.
My history provided all the elements necessary to craft a narrative to support keeping me confined, permanently, or setting me free—notwithstanding the results of a potentially negative psychological risk analysis.
Quite simply, there was the good, the bad, and the ugly.
The case for freedom could summarize that “I used to be dangerous. Now I can effectively speak in public. I can present cogent legal arguments. I am a columnist.”
An account of my history confined could emphasize:
“I had spent almost a decade doing little more than fighting prisoners and assaulting guards, until I somehow found the strength to turn my anger into something positive. Now I write term papers and legal briefs that benefit both me and others confined with me [ ] No longer confined to an existence that the prison subculture glorifies, my intellect rather than ruthlessness is the basis for self-respect. This is the essence of rehabilitation.”
Were this the parole board’s conception of me, undoubtedly I would be freed.
This is the narrative that I tried to focus upon to prevent being consumed by worry over psychological methodologies that were, quite frankly, a mystery to me. But worrying was becoming all too easy. In doing research to understand the legal landscape governing the authority vested in parole boards, the case law that I read further unsettled me.
Consider the law.
Across the US, the release of a prisoner who is serving an indeterminate life sentence is often “subject entirely to the discretion of the Board, which may parole him now or never.” Therefore, a prisoner has an opportunity to be freed—but he may never have an opportunity to be free.
As for determining whether a prisoner is rehabilitated, parole boards assess “a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.”
All of this reading was chilling. Given the “multiplicity of imponderables” involved in this decision making, it seemed parole boards could do damn near anything.
Although the standard for parole eligibility is less discretionary when (as here) the governing statutes require prisoners to be freed unless a preponderance of the evidence shows that a disqualifying condition is present; in the final analysis, how a parole board weighs the evidence is entirely subjective.
Educated guesses and static risk assessments are all that most parole boards are left with. As a consequence, little has changed in the 50 years since the Washington Supreme Court gave voice to the mindset of parole boards:
“[A]lthough releasing a convicted felon on parole may be beneficent and rehabilitative and in the long run produce a social benefit, it is also a risky business. The parole may turn loose on society individuals of the most depraved, sadistic, cruel and ruthless character who may accept parole with no genuine resolve for rehabilitation nor to observe the laws and customs promulgated by the democratic society, which in the process of self-government granted the parole.”
This begs the question: How can a parole board with any degree of certainty utilize a rational means to separate prisoners who are “depraved, sadistic, cruel and ruthless” from those who pose little risk to public safety?
Psychological evaluations to measure a prisoner’s recidivism risk are one way to go about the process. In fact, they are mandated for Washington State prisoners affected by Miller v. Alabama and its progeny.
Prisoners just like me.
Which leads us back to my pre-parole hearing wariness about psychological risk assessments.
On which side of the coin would I fall on after undergoing such an analysis?
Rehabilitated or likely recidivist?
This question was resolved for me on Nov.7, 2017, when the Indeterminate Sentence Review Board informed me of the following:
“The Board commends Mr. Bourgeois for completing a significant amount of programming. However the Board has determined that he does not meet the statutory criteria for release at this time for the following reasons. Mr. Bourgeois has been assessed in his most recent psychological evaluation at a ‘Moderate to High’ risk to reoffend. Additionally, he has a history of serious violence while in prison, to include two felony assaults against Corrections Officers during his prison stay. Also, Mr. Bourgeois’ offense is particularly heinous as it was a revenge killing against victims of a crime for which they had been willing to testify in court to assist in securing a conviction of their perpetrator, Mr. Bourgeois’ brother.”
And that was the end for me: The parole board took note of the good, but was primarily influenced by the bad—and ugly.
Since this decision was reached, I have come to understand the methodology behind the DOC psychologist’s finding that I am a “Moderate to High risk to reoffend” if conditionally released. Indeed, my discovery gives insight into the difficulty in assessing the recidivism risk of those who have spent decades confined for crimes that they committed when they were minors.
Since there is no large-scale data specific to the parole outcomes of prisoners like me, psychologists within DOC rely upon the Violence Risk Appraisal Guide (VRAG) which was constructed and validated on a cohort comprised mostly of white Canadian male forensic patients.
Further, in its revised edition (VRAG-R), relies upon a sample of individuals who, for the most part, either plead or were found not guilty by reason of insanity and spent an average of four years imprisoned.
The VRAG-R is designed to measure the risk of future violence by those who committed their instant offense when they were adults, not adolescents and, as Dr. John Monahan, a preeminent expert on risk assessments, explains:
“[T]here comes a point at which the sample to which an actuarial instrument is being applied appears so fundamentally dissimilar to the sample on which it was constructed and originally validated [ ] that one would be hard pressed to castigate the evaluator who took the actuarial estimate as advisory rather than conclusive.”
The VRAG-R scoring sheet, for instance, gives higher points if a person did not live with their parent(s) until they were at least age 16, are unmarried, and their crime(s) took place before they were age 26. These strikes are therefore baked in the cake when assessing those who are confined as adolescents because, ultimately, the assessment does not account for the fact that “children are different.”
Notwithstanding the efficacy of utilizing the VRAG-R to assess the potential risk I pose to public safety—as I said in the beginning—my history provided the means for crafting a narrative to support keeping me confined permanently, or setting me free.
In this instance, I just happened to fall within the category of those believed to be cloaking their criminogenic propensities.
I am still coming to terms with the notion that I am a likely recidivist.
I don’t know if I will be able to get over this.
Viktor E. Frankl, in Man’s Search for Meaning, observed that every case of suicide may not be “undertaken out of a feeling of meaninglessness, [but] it may well be that an individual’s impulse to take his life would have been overcome had he been aware of some meaning and purpose worth living for.”
I know exactly what he means.
Having been denied parole after 25 years of confinement for crimes committed when I was 14-years-old, I can now envision the day when all I will have to live for is writing my monthly columns for The Crime Report.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He welcomes comments from readers. Those who wish to express their opinion regarding the decision to deny his release can contact the Indeterminate Sentence Review Board. Readers’ comments are welcome.