Although I have been confined since the age of 14, I found a way to meaningfully contribute to society.
I did this—and still do it—through my writing.
Often, as author Robert A. Ferguson writes in “Inferno: An Anatomy of American Punishment,” when prisoners write about the nature of imprisonment, “the oversight of officialdom produces a tortured language of evasion […] [and the] fear over what authorities might do in response, distort what can be written.”
However, the columns and critiques that I have published over the years illustrate that, as yet, potential repercussions have not been a deterrent.
The most recent example of my resistance (or perhaps foolishness) is A Janus-Faced Approach: Correctional Resistance to Washington State’s Miller-Fix.
In this paper, I argue that the Washington Department of Corrections is unlawfully detaining prisoners who have spent 20-plus years confined for violent offenses that they committed prior to age 18; and, due to changes in the state’s sentencing laws, are entitled to be released—at least, according to my statutory analysis.
I also begin the piece with a personal narrative that provides insight into why the practice and policy in question infuriates me.
Prior to completing the final revisions of this paper, several of my lawyers advised me to abandon publication because they believed it is too risky due to my forthcoming parole hearing.
Their arguments in support of this can be distilled to the following.
First, I come across too angry in the piece, which is a terrible impression to make because correctional administrators view such prisoners negatively—and therefore, in some way, may act capriciously towards me.
Second, I give the impression that I feel entitled to be released, and parole boards take offense when prisoners act as if they are owed something.
Allowing this paper to be published before my next parole hearing, as one lawyer explained to my fiancé in an effort to convince her to dissuade me, “significantly increases the chances that he is not let out and is a very, very, VERY bad idea.”
One of the editors of the Ohio State Journal of Criminal Law even felt compelled to tell me after, unbeknownst to me, some members of my legal team had contacted the journal conveying their worries:
Dear Mr. Bourgeois:
As you probably know, your attorneys also contacted us with their concerns about publishing your commentary. The position of us here at the Journal is that the decision about whether to publish rests entirely with you as the author. However, we wanted to make sure you knew all of your options regarding the commentary.
The decision rests with you and you alone. We at the Journal are happy to publish now, delay publication for as long as you would like, or not publish at all. I just wanted to make sure you understood all of the possibilities.
Regarding your request for a referral to a free speech advocate, I am afraid I don’t have any specific connections or recommendations in that area.
Let us know how you want us to proceed.
My response was this:
In my commentary I wrote that part of surviving a life sentence involved my decision to “study the law continuously, for with such knowledge I can help not only myself, but others confined with me, by seeking to hold our keepers accountable when they acted arbitrarily or capriciously.” There are countless prisoners currently being affected by the practices and policies that I am highlighting. Therefore, I am going to act in conformity with the decision I made over a decade ago. Please proceed with publication as scheduled.
Best regards and my thanks to all of you. I apologize if any of you were made to feel as though you were caught in an ethical dilemma.
I now wish to address what I believe lies behind the concerns that my writing could put my potential freedom in jeopardy. Namely, the pernicious notion in the minds of many, that prisoners have no right to be frustrated, bitter, or resentful about their imprisonment; and that retribution and incapacitation have both exceeded the bounds of what is legitimate for purposes of punishment.
Rage Against the Machine
If you were ever confined for crimes that you committed in your youth, and decades later your reformation proved to be a success, it is unimaginable to me that you would not then be upset at having to continue to spend your life in darkness.
For those who have been blessed to have never experienced this earthly perdition, here is a thought experiment to provide insight into such an existence.
Imagine that your reckless actions resulted in you being involuntarily committed to a mental hospital, perhaps because an un-diagnosed injury to your prefrontal cortex negatively affected regions of your brain that are “implicated in processes of long-term planning, regulation of emotion, impulse control, and the evaluation of risk and reward….” [EDITOR’S NOTE: the original link for this quote is no longer accessible]
For years thereafter, you shuffle down the hospital hallways dressed inappropriately, at times throw feces like a monkey, and abide by patient rules and norms that—to those in authority—are prima facie evidence that you are crazy.
One patient stabs another.
The victim falls at your feet.
You are not bothered in the least.
An orderly gets assaulted trying to restrain the assailant, and you find it amusing.
You too engage in such conduct in the grips of your insanity.
Then, one day after years of therapy and neural regeneration, you finally snap back to reality. You realize how foolish you look with your hospital pants hanging below your waistline, so you start to wear them properly. You perceive that violence is almost always unnecessary and vow to live your life peacefully. From this day forward, you begin to conduct yourself in a manner that is consistent with society’s rules and expectations.
Yet, in spite of this, you remain stuck in that mental hospital surrounded by patients who, for the most part, pose a threat to themselves and others.
Regularly, you bear witness to how they abuse one another.
You see orderlies mistreat prisoners and act unprofessionally.
Staff also speak to you as if you were still crazy.
This is a metaphor of my life. I (“JJ”) use the metaphor of a mental hospital purposefully, by reason of an incident that occurred quite recently:
For example, six months ago JJ was trapped in [his] cell for five hours with [a] man who was actively psychotic. JJ sat across from this man—alone—in a cell and listened to him talk about the murders he had just committed. This man was pacing back and forth, agitated one minute and laughing the next: “a switch would get flipped and this guy would get agitated and ask me ‘who the fuck do I think I am talking like this to him’ when I hadn’t said anything offensive. This went on for five straight hours.”
JJ was unable to get the attention of the night guard so he was forced to sit there and navigate this situation alone. JJ was terrified and as such felt his body wanting to go into fight or flight mode during those five hours. Now, what 13- or even 20-year old JJ would have done would be to puff up his chest to appear larger than he was which would then send the unstable inmate into a rage which then in turn, would prompt JJ to feel the need to defend himself leading the other man to attack JJ.
Then, JJ would have needed to respond by meeting violence with violence. “As an adult, I know now I had to deal with this threatening situation by keeping my body relaxed . . . I talked to myself constantly during those five hours, I’d say ‘keep your body calm, take a deep breath, keep your voice calm’ and I said things like ‘look man, I didn’t mean it like that.’”
JJ remained calm as this man went from laughing hysterically to pacing back and forth and sobbing to becoming irrationally angry and then leaning in on JJ and getting in his personal space: “my gut wanted to get the jump on him so bad but I know this is not the way to handle adversity.”
Such is life for a prisoner serving an indeterminate sentence who, is fit to rejoin society, but must remain confined because the powers that be believe it is more likely than not that he will commit a criminal offense if released.
I can assure you, it is a miserable existence.
Were you to remain imprisoned long after you believed your reform was complete, you too would be angry if—like me—you are utterly convinced that if set free you would be a productive member of the community.
Why would you not be moved to anger living in a place where the weak are extorted and preyed upon sexually?
Why would you not be incensed when prisoners balkanize into racial cliques and ferment unrest.
No one with a sense of morality and the capacity to feel empathy could, in my view, remain unmoved when he cannot escape “a cold and cruel place, populated by selfish, sinister people.”
It makes me angry and anxious. I refuse to cloak the former when I reveal the latter in writing about my life spent in confinement. The righteousness of such anger seems to be self‑evident.
As for the sense of entitlement that I supposedly evince—to be clear—I have never expressed that I am entitled to be freed. I am serving an indeterminate sentence which, by its nature, means the duration of my confinement is subject to discretionary decision making.
I have recognized that accurately determining “if a prisoner would be likely to reoffend if set free…is a difficult task, undoubtedly.”
I have even conceded that my history provides “the means for crafting a narrative to support keeping me confined permanently, or setting me free.”
Still, while I am not entitled to be freed, I have a right to feel that “there is no reasonable basis for believing that I would ever, if released, commit a monstrous act—or any crime for that matter” and to insist that “[i]ncapacitation, in my case, has now exhausted its purpose.”
I speak of rights deliberately: it is the language citizens use in order to “defend the interests they have by virtue of their humanity against efforts by others to suppress those interests or to live indifferent to the suffering caused by failing to recognize the interests of others.”
So, I will continue to believe that remorse, reform, and a quarter century of imprisonment warrants setting me free.
My next parole hearing will be in July 2019. We will then see whether decision makers, as my lawyers believe, “base their moral judgments, including those concerning punishment, on their feelings, and those feelings are not always morally justified.
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.