Observation 

and Study' 

in the Feileral 


District Courts 

THE FEDERAL JUDICIAL CENTER 

Board 

The Chief Justice of the United States 

Chairmo.n 

Judge Daniel M. Friedman Judge A. David Mazzone 

United States Court ofAppeals United States District Court 

for the Federal Circuit District ofMassachusetts 

Judge Arlin M. Adams Chief Judge Warren K. Urbom 

United States Court ofAppeals United States District Court 

for the Third Circuit District ofNebraska 

Chief Judge Howard C. Bratton Judge Martin V. B. Bostetter, Jr. 

United States District Court United States Bankruptcy Court 

District ofNew Mexico Eastern District ofVirginia 

William E. Foley 

Director ofthe Administrative 


Office ofthe United States Courts 


Director 

A. Leo Levin 

Deputy Director 


Charles W. Nihan 


Division Directors 

Kenneth C. Crawford William B. Eldridge 

Continuing Education Research 


andTraining 


Gordon Bermant Alice L. O'Donnell 

Innovations Inter-} udicial Affairs 

and Systems Development and Information Services 

1 520 H Street. NW 

Washington. D.C. 20005 

Telephone 202/633-6011 

~ 
OBSERVATION AND STUDY IN THE 


FEDERAL DISTRICT COURTS 

By Julie Horney 

1985 

This pUblication is a product of a study undertaken in furtherance 

of the Federal Judicial Center's statutory mission to conduct and 

stimulate research and development on matters of judicial administration. The analyses, conclusions, and points of view are those 

of the author. This work has been subjected to staff review within 

the Center, and publication signifies that it is regarded as responsible and valuable. It should be emphasized, however, that on matters of policy the Center speaks only through its Board. 
Cite as J. Horney, Observation and Study in the Federal District 

Courts (Federal Judicial Center 1985). 

FJC-R-85-3 

TABLE OF CONTENTS 

PREFACE ................................................................................................ v 


I. INTRODUCTION ....................................................................... 1 


Origin and Purpose of the Research... ...... ............... ...... ......... 1 


Method.......................................................................................... 2 


II. OBSERVATION AND STUDY: BACKGROUND ................ 5 


Studies of Adult Offenders ....... ..................................... ........... 5 


Studies of Youthful Offenders............ ...................... ................ 6 


Local Presentence Studies.................. ........ ........ ...... ....... ......... 6 


Other Types of Studies .......... ....... ............... ..................... ......... 7 


III. REFERRAL OF CASES BY THE COURTS.... ...................... 9 


Selection of Cases........ ................. ....... ...... ..... ................. ..... ...... 9 


Choosing Bureau Versus Local Studies.................................. 11 


Providing Study Objectives and Questions ................. ........... 13 


Appropriateness of Questions........................................ ........... 14 


IV. THE STUDY PROCESS IN THE INSTITUTION ................ 19 


Designation of an Institution ............................................. ...... 19 


Offender's Arrival at the Institution ...................................... 19 


Preparation of Study Reports .......................... ........................ 21 


The Standard Study.... .............................................. ................. 22 


Time Pressures in the Study and Review Process .... '" ........ 24 


V. EVALUATION OF REPORTS BY THE COURTS .............. 27 


VI. CONCLUSIONS AND RECOMMENDATIONS .................... 29 


Defining the Purposes of Observation and Study.... ........ .... 29 


Careful Selection of Cases and Study Questions .................. 30 


Improving Communication Between the Courts and the 


Bureau of Prisons ................................................................... 32 


Efficient Conduct of Observation and Study......................... 34 


111 

PREFACE 

This report describes the procedures under which a court, prior 

to sentencing, may refer convicted federal offenders to the Bureau 

of Prisons for a brief period of observation and study to gain information relevant to the sentencing decision. It also presents the reactions of a number of federal judges to the reports they have received in response to recent referrals. 

In detailing the practices of courts and probation offices in 

making these referrals, and of the Bureau of Prisons in response, 

the report also comments on the extent to which these procedures 

are in accord with the recommendations of a 1977 Federal Judicial 

Center report on the same topic. 

In October 1984, after this report was completed, legislation was 

enacted that will modify the observation and study process (Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473). Under 

the act's current effective-date provisions, the section authorizing 

presentence studies (18 U.S.C. § 3552(b») will become effective November 1, 1986. A number of footnotes have been added to the 

report to point out pertinent provisions of the new legislation. 

v 

I. INTRODUCTION 


Origin and Purpose of the Research 

Since 1958 federal judges have been allowed by statute to commit 

convicted offenders to the custody of the attorney general for a 

ninety-day period of observation and study prior to final sentencing.I Intended as an aid to the sentencing decision, the presentence 

study is designed to provide the judge with psychiatric, psychological, medical, educational, and/or vocational evaluations of the defendant-information that goes beyond the scope of the probation 

officer's presentence investigation report. 

The research described in the present report was undertaken by 

the Federal Judicial Center in response to a request by Federal 

Bureau of Prisons staff involved in the preparation of presentence 

study reports, who questioned whether their reports are meeting 

the needs of the courts. In the course of interviews conducted for 

the study, however, it became clear that the perceptions of the 

courts and those of the Bureau of Prisons staff are often at odds, 

and the study therefore developed into a broader reassessment of 

the functioning of observation and study. In particular, the present 

study updates an earlier Center study of the topic by Larry 

Farmer,2 both reviewing that report's findings and recommendations and assessing the progress that has been made since. 

This report focuses on the referral process in the courts and the 

preparation of reports in the correctional institutions, presenting 

the perceptions of judges, probation officers, and correctional staff 

regarding the observation and study process. Additionally, it raises 

questions about the purpose of observation and study and offers 

several recommendations for changes. 

1. Effective November I, 1986, 18 U.S.C. § 3552(b), as modified by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 1976, will reduce 

this time period to sixty days. 

2. L. Farmer, Observation and Study: Critique and Recommendations on Federal 

Procedures (Federal Judicial Center 1977). 

1 
Chapter I 

Method 

To examine the current operation of the observation and study 

process, informal interviews were conducted with judges, probation 

officers, and corrections staff involved in study reports, and a 

sample of cases was examined. Three federal correctional institutions-at Springfield, Missouri; Lexington, Kentucky; and Butner, 

North Carolina-were visited. They were selected because they 

produce a substantial number of the study reports prepared 

through the Bureau of Prisons. At these institutions, interviews 

were held with a total of five psychiatrists, eight psychologists, four 

case managers, two unit managers, one case management supervisor, and two assistant wardens. 

The judges selected for interviews either had very recently (i.e., 

during the fall of 1983) referred a case to one of the above institutions or had, according to statistics from the Administrative Office 

of the United States Courts, referred cases for observation and 

study during fiscal 1983. To keep travel costs at a minimum, an additional criterion for selection was that the judges be located in one 

of two general geographical locations. The judges included three 

from the District of the District of Columbia, four from the Western District of Missouri, two from the District of Nebraska, one 

from the Eastern District of Virginia, and one from the District of 

Maryland. From those five districts, four chief probation officers, 

one deputy chief probation officer, three supervisors, and four probation officers were also interviewed. 

In addition, a sample of twenty-eight study reports was collected 

from the three correctional institutions. They represented all the 

studies completed by those institutions during a one- or two-month 

period in the fall of 1983. The previous research by Farmer was 

also reviewed, as was the joint statement of understanding on observation and study between the Administrative Office (which administers the federal probation system), the Bureau of Prisons, and 

the U.S. Parole Commission, 3 an agreement that resulted from the 

recommendations of the Farmer report. Further information came 

from other relevant policy statements from the Bureau of Prisons 4 

3. Observation and Study Practices: A Joint Statement of Understanding Between 

the Probation Division of the Administrative Office of the United States Courts, 

Federal Bureau of Prisons, and United States Parole Commission (Sept. 1979) (avail· 

able from the Probation Division) (hereinafter referred to as the "joint statement of 

understanding"), 

4. Bureau of Prisons, Study and Observation Cases and Competency Commit· 

ments, 18 U.S.C. §§ 4205(c), 4244, 4246, 501O(e), 5037 (program stat~ment no. 5070·3, 

Jan. 2, 1979). 

2 
Introduction 

and the Administrative Office 5 and from a General Accounting 

Office (GAO) draft report on observation and study.6 

It should be noted that the institutions studied, judges and other 

persons interviewed, and reports reviewed were not selected in a 

random fashion. The findings reported here, therefore, are not necessarily representative of systemwide practices. 

5. Administrative Office of the United States Courts, Guide to Judiciary Policies 

and Procedures, vol. 10: Probation Manual. 

6. General Accounting Office, Presentence Evaluations of Offenders Can Be More 

Responsive to the Needs of the Judiciary (1984 draft report, not yet available for 

distribution). 

3 

II. OBSERVATION AND STUDY: 


BACKGROUND 


Studies of Adult Offenders 

Under 18 U.S.C. § 4205(c), a judge may commit a convicted offender to the custody of the attorney general, and thus to the custody of the Bureau of Prisons, for a ninety-day period of observation and study prior to final sentencing. This section, originally enacted in 1958, was part of a general statutory reform that provided 

for the indeterminate sentencing of adult offenders. To facilitate 

greater individualization of sentencing, the Judicial Conference of 

the United States suggested the observation and study period as an 

important adjunct to the probation officer's presentence investigation. Robert Schwaneberg, in reviewing the legislative history of 

the statute, pointed out that the observation and study period was 

clearly intended to be used for relatively few cases-namely, those 

involving "difficult medical, psychiatric, sex, or rehabilitative" 

problems. 1 

Section 4205(c) stipulates that the study of the offender be like 

the study carried out under section 4205(d), which is done after sentencing, primarily for the benefit of the Parole Commission. That 

study "may include but shall not be limited to data regarding the 

prisoner's previous delinquency or criminal experience, pertinent 

circumstances of his social background, his capabilities, his mental 

and physical health, and such other factors as may be considered 

pertinent." Section 4205(c) also calls for the court to be given "any 

recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case." 

Under section 4205(c), the offender is technically given the maximum sentence authorized for the offense; but after receiving the 

study report, the judge may affirm the maximum sentence, reduce 

the sentence, or place the offender on probation. The period of observation and study may last for ninety days, and an extension of 

up to ninety days may be granted by the judge. The benefits of 

7. R. Schwaneberg, Legislative History of Observation and Study 29 (Federal Judi· 

cial Center 1977). 

5 
Chapter II 

such an extended period were discussed during legislative hearings 

on the original statute, in which Deputy Attorney General Walsh 

testified that "there is very little chance that a person can mislead 

a group of people like that for ninety days. He can mislead them 

for a week, perhaps, but over ninety days, or six months if needed, 

they can tell whether he can be educated or not."B In 1976, when 

the statute was reenacted as section 4205(c), there were attempts to 

reduce the study and observation period to sixty days with a possible sixty-day extension, but these attempts failed. 9 

Studies of Youthful Offenders 

Section 4205(c) applies to the sentencing of adult offenders. Very 

similar provisions for the sentencing of youthful offenders exist in 

18 U.S.c. § 501O(e). These were enacted several years earlier than 

the adult provisions, as part of the Youth Corrections Act of 1950, 

a rehabilitation-oriented statute that provided for the indeterminate sentencing of youthful offenders. lo Offenders under age 22 at 

the time of conviction must be sentenced under the act unless the 

court makes a finding that the defendant would not benefit from 

the treatment the act allows for. In 1976, the act was extended to 

offenders up to age 26 for whom a finding of benefit is made. The 

observation and study provision is intended to assist the judge in 

making decisions concerning amenability to treatment. 

One procedural difference between the adult and youth statutes 

is in the shorter time period allowed for observation and study of 

youthful offenders: sixty days with a possible extension of sixty 

days. 

Local Presentence Studies 

Under 18 U.S.C. §§ 4205(c) and 5010(e), offenders are committed 

to the custody of the attorney general, and the studies are done by 

the Bureau of Prisons. Presentence psychiatric, psychological, and 

8. Federal Sentencing-Institutes and Joint G'ouncils: Hearings on HR.J. Res . .42.4, 

HR.J. Res . .425, and HR. 892.'} Before Subcomm. N.tJ of the House Comm. on the Ju· 

diciary, 85th Cong., 2d Sess. 36 (1958). 

9. Schwaneberg, supra note 7. Note, however, that these reduced time periods 

have been adopted under the Crime Control Act of 1984 (effective November 1, 

1986). 

10. The Crime Control Act abolished Youth Corrections Act sentences, effective 

October 12, 1984. The abolition has been interpreted as applying to offenses committed on or after that date. 

6 
Background 

medical studies may also be done by experts in an offender's local 

community, with payment authorized under 5 U.S.C. § 3109. 11 In 

such cases the local probation office is responsible for making all 

arrangements, including provision of an evaluation site and transportation. 

This alternative method of obtaining information about an offender is generally faster, less expensive, and less intrusive than an 

institutional study (i.e., one done by an institution under the jurisdiction of the Bureau of Prisons). In theory, local studies also differ 

in scope from those done by the Bureau of Prisons in that they generally consist of only one type of study (e.g., a psychiatric or a psychological workup) rather than a series of investigations by a team 

of professionals, and do not contain the component of observation. 

As is discussed later in this report, however, these differences in 

scope may be more apparent than real under current practices for 

conducting institutional studies. 

Other Types of Studies 

It is important to note that the studies carried out under sections 

4205(c) and 5010(e) are done only after conviction of the offender. 

Thus they are quite different from the pretrial competency studies 

provided for under 18 U.S.C. §§ 4244 and 4246. Under section 4244, 

a person charged with a federal crime may be committed to the 

Bureau of Prisons for an evaluation designed to answer the specific 

question, Is the patient competent to stand trial at this time? 

Follow-up studies on those judged incompetent are conducted under 

section 4246. The section 4205(c) and 5010(e) studies should also be 

distinguished from the special studies of alleged or adjudicated juvenile delinquents (18 U.s.C. § 5037) and of narcotics addicts (18 

U.s.C. § 4252). Very few of these cases are referred to the Bureau 

of Prisons. 

This report focuses on the presentence adult studies conducted 

under 18 U.s.C. § 4205(c). However, most of the findings apply also 

to youth studies (18 U.S.C. § 50l0(e», which are handled in an 

almost identical manner. 

11. Effective November 1, 1986, 18 U.S.C. § 3552(b). as modified by the Crime Control Act, both provides specific statutory authority for local presentence studies and 

directs that studies ordered under 18 U.S.C. § 3552(b) be done by experts in the community "unless the sentencing judge finds that there is a compelling reason for the 

study to be done by the Bureau of Prisons or there are no adequate professional 

resources available in the local community." 

7 

III. REFERRAL OF CASES 


BY THE COURTS 


Selection of Cases 

Farmer observed that the selection of cases for observation and 

study is "the most crucial decision in the study process" and that 

"the usefulness of a study report is probably proportionate to the 

appropriateness of the case for study." 12 The current interviews revealed, as Farmer found earlier, that in most courts no specific selection criteria are in use. One of the five probation offices visited 

has written guidelines; in the others, offenders are selected on a 

case-by-case basis. 

Initiation of Referral 

Referrals are typically initiated by the probation officer, who 

generally receives detailed information about the offender before 

the judge does, through conducting the presentence investigation. 

Although judges usually agree with the probation officer's recommendation, they sometimes decide against a referral if they believe 

a study will provide no additional useful information. Judges may 

also initiate referrals when they are bothered by something in the 

presentence report or by the offender's in-court behavior. One 

judge reported that his referrals are usually initiated by defense 

counsel. 

Case Factors 

According to the probation officer in the one office with guidelines, the following factors, although not exhaustive, are deemed 

suggestive of the need for a study: 

1. 	There is a history (either in the record or known to the 

family) of serious psychological problems. 

12. Farmer, supra note 2, at 10-11. 

9 
Chapter III 

2. 	The offense behavior included violence on the part of the defendant. 

3. 	The background history and current offense do not appear to 

be related (the latter is out of character for the defendant), or 

no plausible explanation for involvement in the offense can 

be suggested by the probation officer, the family, or the defendant. 

4. 	There is some evidence that severe depression or excessive 

hostility is present or was present either during the commission of the offense or upon interview. 

5. 	A history of prolonged drug or alcohol abuse may have triggered a strong emotional or physical reaction. 

6. 	There are indications of bizarre ideas or activity, including 

perhaps regressive behavior. 

7. 	There is an indication of significant developmental disability, 

or the probation officer has questions relating to the defendant's potential for learning. 

8. 	The probation officer is unsure about how the individual 

could best be assisted if he or she were granted supervision. 

The judges and other probation officers interviewed described a 

number of factors that would lead them to request observation and 

study for an offender, many of which fall within the above guidelines. Most frequently mentioned were an offender's past history of 

psychiatric problems or suicide attempts and an offense that seems 

out of character for the individual. Other factors were strange behavior in court by the offender, unusual aspects to a crime, and 

drug problems. One judge believes a study is necessary when past 

treatment programs have failed to help an offender. Physical 

health problems were also cited as a reason for ordering observation and study, as was concern about possible dangerous behavior. 

Another judge noted that he sometimes uses the observation and 

study provision to gather as much information and as many opinions as possible in white-collar crime cases, in which the sentencing 

decision is made difficult by the necessity of imposing adequate 

sanctions for an offense without needlessly punishing the offender. 

Other Purposes of Referra1 

Corrections staff are concerned that some offenders are referred 

for observation and study for what they consider invalid reasonsreasons other than gaining information pertinent to the sentencing 

decision. They pointed out that morale suffers when staff feel they 

10 
Referral ofCases 

are expending considerable time and energy to gather information 

that will not be used. Some judges and probation officers said, as 

Farmer reported earlier, that observation and study is used to give 

the offender a "taste of jail." One judge, who said he uses the process to give an offender a short period of incarceration, finds it especially useful for people who have gotten into trouble with drugs 

(usually with no prior record); he believes such an incarceration 

provides them with an opportunity for self-analysis and treatment. 

Some judges feel that it is improper to use observation and study 

for this purpose but that the short period of incarceration is sometimes a useful dividend when the study process is being used appropriately to obtain information. These judges stated that there are 

other ways to give a taste of jail when there is no reason for a 

study; these include a split sentence and granting a reduction-ofsentence motion after 120 days. 

Another reported use of the study and observation process is to 

provide a "cooling off' period when there is public pressure to 

"throw the book" at the offender. The maximum sentence is imposed, satisfying the community, and then, when the report is received after 90 to 180 days, the sentence can be lowered. Moreover, 

one judge pointed out that because an appeal can be made when a 

study is ordered, the judge may have a chance to review the defendant's conduct in the community during the appeal process and 

before final sentencing. Finally, one judge described an instance in 

which the process was used to "put the heat on" an offender whose 

testimony was needed on some other matter; he felt such use was 

clearly not legitimate. 

Choosing Bureau Versus Local Studies 

A major recommendation of the Farmer report on observation 

and study was that courts that order more than ten studies a year 

should have most of their studies done locally rather than by the 

Bureau of Prisons. 13 Farmer concluded that local studies could be 

accomplished for much less money, in less time, and with a less restrictive setting for the offender. The joint statement of understanding developed by the Administrative Office, the Bureau of 

Prisons, and the Parole Commission as a result of the Farmer 

report states that local studies should be used whenever feasible. 

13. The essence of this recommendation has been adopted by the Crime Control 

Act (see note 11). 

11 
Chapter III 

Two of the jurisdictions visited for the current study make extensive use of local studies, but the others use the section 4205(c) or 

5010(e) process to send most cases to the Bureau of Prisons. All 

those interviewed were asked what determines whether a local or a 

bureau study is requested. 

Public safety was the most commonly mentioned issue. An offender who is considered potentially dangerous is generally referred to the bureau for study. Several respondents said they 

choose institutional (bureau) studies if the offender is likely to be 

incarcerated on final sentence. Offenders who are chosen for a 

"taste of jail" and will probably be released after the ninety-day 

study period are also referred to the Bureau of Prisons. An institutional study is sometimes used when the court considers it important to get the offender out of his or her present situation, and, 

conversely, a local study may be chosen when the court believes 

that involvement of the offender's family or community is important. 

Other factors mentioned as determinants of the type of study 

were the kinds of questions being asked (broader questions resulting in institutional studies, where the study model is based on a 

team approach), how soon the report is needed (local studies being 

completed more quickly), and the availability of community resources for local studies. 

Although certain jurisdictions have accepted use of local studies, 

others are clearly very skeptical. Those who are skeptical usually 

refer to a concern that community psychiatrists or psychologists 

are not knowledgeable enough about special problems in dealing 

with criminal offenders, are more likely to be "conned" by the offenders, and tend to be too liberal and opposed to incarceration. 

Judges and probation officers who use local studies, however, are 

quite satisfied with the results. 

In addition to skepticism, there also seems to be some lack of 

knowledge about local studies. In one district in which the probation officer reported the availability of excellent resources for local 

studies, a judge reported using bureau studies because of the lack 

of community resources. Another judge, who.was relatively new to 

the bench, did not know that a local study was a possible alternative to a bureau study, while others were uncertain about the procedures for local studies. 

12 
Referral of Cases 

Providing Study Objectives and Questions 

At the time of Farmer's report in 1977, there had been complaints from judges that they were not getting useful information 

from the study reports. Farmer concluded that the reports were 

unsatisfactory primarily because the courts were not communicating to institutional staff what kind of information they needed. He 

estimated that 95 percent of the cases were referred without any 

specific questions and concluded that "[t]he failure to send referral 

questions to the bureau is a root cause of the frustration court personnel experience with the results of these studies. It undermines 

the rest of the presentence study process."14 Farmer's most important recommendation for improving the observation and study 

process was that specific, written study objectives and questions be 

sent to the Bureau of Prisons for every offender referred. He suggested that probation officers take the major responsibility for presenting the court's questions. These recommendations were incorporated in the joint statement of understanding, which gives the 

Bureau of Prisons the responsibility to solicit questions if they are 

not provided by the probation office. 

Generating Questions 

Most of the judges and probation officers interviewed for the current study said that they now always transmit specific questions 

with every observation and study case. The process by which judges 

and probation officers work together to generate questions varies 

considerably from district to district and sometimes within a district. In some cases, the probation officer suggests a list of questions at the same time as recommending the observation and study; 

the judge then approves or disapproves the questions when deciding whether to order the study. In other cases, the judge and probation officer discuss the case and the questions they want answered 

once the judge has approved the referral; the probation officer next 

drafts the list of questions, and the judge reviews it and makes any 

necessary changes. In rare instances, judges play no role in developing questions once they have approved a referral, but instead 

delegate the entire process to the probation officer. 

Absence of Questions 

Although the interviewees reported sending study questions with 

every referral, there are indications that the problem of lack of 

14. Farmer, supra note 2, at 11. 

13 
Chapter III 

guidance from the courts persists. A recent GAO study examined 

157 offender evaluations performed by the Bureau of Prisons in 

1981; of those, 90 were done without specific questions from the 

courts. 15 Corrections staff interviewed for the present study reported that many cases are still referred to them without study 

questions. The court had not provided questions for three of the 

twenty-eight sample reports examined in this study.16 

The absence of questions is of major concern for two reasons. 

First, of course, is the problem of lack of guidance. All of the staff 

involved in preparing study reports believe it is difficult to return 

a useful report if the court does not explain its needs. The second 

problem is an administrative one voiced by case managers and unit 

supervisors, who must see that reports are prepared in a timely 

manner. If no study questions have been received by the time an 

offender arrives at the institution to begin the study and observation period, the Bureau of Prisons requires the person in charge of 

the study to contact the probation officer to determine the nature 

of the court's concerns. This task can consume several days, especially when the available documents do not specify which probation 

officer has handled the particular case. Sometimes the probation 

officer, when reached, is unable to articulate the purpose of the 

study, and the case manager has to suggest questions. Corrections 

staff suspect that in these instances the offender is being referred 

for purposes other than evaluation. It was impossible in the 

present study to determine how often, overall, case managers must 

contact the courts to obtain questions. The staff of one institution, 

however, checked their records for two months and found they had 

called probation officers in four out of sixteen cases. 

Appropriateness of Questions 

Although the absence of study questions remains a problem, 

questions are being forwarded far more frequently than at the time 

of the Farmer report. An issue that now comes into focus is the appropriateness of the questions being asked. The GAO report mentioned earlier is critical of the Judicial Conference of the United 

States and the Bureau of Prisons for not having provided judges 

15. General Accounting Office, supra note 6. 

16. The difference in the percentages of cases without study questions found in 

these sample cases and those examined by the GAO may be due to the different 

time periods from which the cases were drawn. It could also be due to the fact that 

both samples were chosen for illustrative purposes only, not for statistical validity, 

and that either or both are in some ways not representative of study reports prepared throughout the federal prison system. 

14 
Referral of Cases 

with guidance on the kinds of questions that can be answered by 

the experts. In the present study, corrections staff were asked to 

discuss what kinds of questions they found appropriate or easiest to 

answer and what kinds they found inappropriate or hardest to 

answer. Staff members were not always in agreement, but patterns 

did emerge with regard to three types of questions: requests for 

predictions of offenders' dangerousness, requests for sentencing recommendations, and requests for treatment recommendations. 

Dangerousness 

In thirteen of the twenty-eight sample cases examined, the court 

asked for predictions of dangerousness or about the likelihood of 

the criminal behavior's being repeated. In the corresponding study 

reports, there were seven predictions of no dangerousness, five predictions that the offender would likely be a danger to the community or specific individuals, and one case in which the psychiatrist 

and the psychologist disagreed. Most of the psychologists and psychiatrists interviewed for the present study were concerned about 

the appropriateness of such questions. Task force reports by both 

the American Psychiatric Association and the American Psychological Association have taken stands regarding the inability of 

mental health professionals to make specific predictions about 

someone's future dangerousness.17 Very few of the institutional 

staff members, however, said that they do not answer such questions. They usually offer an opinion, though qualifying it with a 

phrase such as "although it is impossible to predict with any medical certainty, ..." Some staff thought that they should probably 

decline to answer more often, whereas others felt that in the absence of anyone more qualified, they should make the predictions. 

Most reported that when they make predictions of dangerousness, 

they almost always base them on specific past behavior. One psychologist noted his fairly strict criteria for making a prediction of 

dangerousness: The individual's history, current behavior, and test 

data should all point to future dangerousness, and the report 

should clearly state if any of those measures are in conflict. 

Judges and probation officers held varying views on the appropriateness of asking for predictions of dangerousness. A number of 

the respondents said that they ask when they feel dangerousness is 

a relevant issue and that they have faith in the ability of mental 

health professionals to make valid predictions. Others said that 

17. American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual, Report No.8 (1974); American Psychological Association, Report of 

the Task Force on the Role of Psychology in the Criminal Justice System, 33 Am. 

Psychologist 1099 (1978) (reprinted in J. Monahan, Ed., Who Is the Client? (1980)). 

15 
Chapter III 

they ask for predictions mainly because they value additional opinions on the matter, not because they really expect to receive accurate predictions. Still other respondents reported that they avoid 

asking for predictions of dangerousness because they believe them 

to be only guesswork, which the judge or probation officer is just as 

capable of doing. 

Sentencing Recommendations 

The current Bureau of Prisons policy, in accord with one of 

Farmer's suggestions, is that sentencing recommendations should 

be included in study reports only if explicitly requested by the 

courts. Some judges and probation officers ask for sentencing recommendations and some do not, but most expect to receive them. 

Only one probation officer expressed familiarity with the bureau's 

policy. No judges said that recommendations based on bureau studies are inappropriate, but several reported being interested only in 

whether an offender should be incarcerated, not in a suggested 

length of incarceration. Sentencing recommendations were explicitly requested in thirteen of the twenty-eight sample cases, and 

they were only provided when requested. In eleven of the thirteen 

cases with requests, imprisonment was recommended. 

Most of the psychiatrists and psychologists interviewed are uncomfortable about making specific sentence recommendations, believing they have neither the training nor the experience to make 

such judgments. In general, the case managers and other institutional staff, who are well versed in making good-time and parole 

calculations according to the guidelines, are much less hesitant to 

recommend sentences. In one institution the psychologists and psychiatrists do not participate in sentencing decisions at all; the case 

manager makes the decision after reading their reports. Sentencing 

recommendations are made at team meetings in the second institution, but the psychologists and psychiatrists do not actively participate in that part of the meeting. In the third institution, the staff 

never make sentencing recommendations; they discuss any need 

for structure, supervision, or treatment, but advise the courts that 

it is their policy not to recommend a specific term of incarceration. 

None of the judges or probation officers knew how the institutions arrive at sentencing recommendations. Several said that 

knowing who was making the recommendations would be of interest to them. One judge was concerned that there may be an effort 

within the Bureau of Prisons to reach agreement on sentencing 

recommendations; he felt it would be much more useful to get information on any disagreement that existed. This is in keeping 

with Farmer's suggestion that a court could only benefit from 

16 
Referral ofCases 

knowing the sources of and reasons for disagreement among various sentence recommendations. One probation officer suggested 

that differences of opinion on sentencing are more likely to be expressed in local studies, in which the people involved are close 

enough to communicate directly with the judge. 

Treatment Recommendations 

Most judges and probation officers said that they ask for treatment recommendations in the observation and study reports. Such 

recommendations were explicitly requested in twelve of the twentyeight cases examined for this study. Some consider them more important if the offender is likely to be placed on probation, but 

others feel that treatment options are limited with probation and 

that treatment recommendations are more useful when the offender is likely to be incarcerated. Corrections staff said that requests for treatment recommendations from the courts are usually 

appropriate, and psychologists and psychiatrists consider these to 

be the questions they can respond to most effectively. Two kinds of 

requests, however, cause problems. A request for design of a specific community treatment plan is difficult for staff to respond to 

because they are unlikely to be aware of the resources available in 

communities other than their own. Also problematic is a request 

for a recommendation on institutional placement. The Bureau of 

Prisons has classification specialists whose job it is to determine 

which institution is most suitable for a particular offender, but the 

staff conducting an institutional study do not have the expertise 

necessary to advise on placement. They usually respond to such requests with a general statement about the resources of the Bureau 

of Prisons. 

Other Questions 

Corrections staff expressed concern about the appropriateness of 

other kinds of questions, noting that some have little to do with 

sentencing decisions and represent an invasion of offenders' privacy. One court, for example, asked about a young white woman's 

proclivity for associating with black males. Another asked whether 

a woman's having been sexually abused by her father twenty-five 

years earlier was related to her embezzlement of bank funds. Sometimes referral questions deal with a person's homosexuality or a 

person's inability to maintain satisfying personal relationships. 

When the relevance of such questions to sentencing is not clear, 

the psychiatrists and psychologists are uncomfortable answering 

them. 

17 
Chapter III 

Also problematic to prison staff are study questions that involve 

issues more commonly raised prior to adjudication of guilt, such as 

an individual's state of mind at the time of the offense or mental 

competency at the time of legal proceedings. As several psychiatrists and psychologists noted, it is just as difficult for a professional to determine-with any certainty-a person's state of mind 

at a time in the past as it is to predict a person's future behavior. 

Moreover, staff are unsure of the purpose of such questions at this 

stage of the legal process. To avoid possible confusion, the court 

should clearly specify the relationship between a question on an offender's state of mind and the sentencing decision. For example, 

though the court may be satisfied that the offender's level of functioning was not impaired to the extent required for preadjudication 

decisions on insanity or incompetence to stand trial,18 it may still 

be interested in taking account of lesser levels of impairment as 

factors in assessment of current treatment needs. 

Most of the staff agree that very general questions, such as a request for a personality profile, do not give enough guidance; however, some also feel questions can be too detailed. A psychologist 

described one referral that contained fifteen or sixteen detailed 

questions but left the staff wondering about the purpose of the 

study. One of Farmer's recommendations was that referral letters 

include not only specific study questions but also the general objectives of the study. Yet when judges and probation officers were 

questioned about including study objectives, several said they 

thought the purpose would be implicit in the presentence report; 

very few of them explicitly state the purpose of a study when they 

refer a case. The Administrative Office's Probation Manual stresses 

the need to make the purpose of a study clear, but indicates this is 

accomplished through the study questions. 

18. In rare cases, the postconviction examination may reveal functioning impaired to such an extent as to raise anew the question whether the defendant was 

competent to stand trial. Procedures prescribed at 18 U.S.C. § 4245 enable the 

Bureau of Prisons to refer such a case back to court to question the appropriateness 

of the triaL 

18 
IV. THE STUDY PROCESS 


IN THE INSTITUTION 


Designation of an Institution 

After a judge has ordered a study report, the case is referred to a 

community programs manager of the Bureau of Prisons, who designates an institution to conduct the study and prepare a report. The 

designation depends on a number of factors, including special needs 

of the offender, kind of evaluations requested, and staffing of the 

various institutions. Some judges request that studies be done in 

particular institutions, and the bureau honors such requests when 

possible. 

Judges who request a specific institution are usually trying to 

meet the individual needs of an offender, for example, choosing an 

institution he or she believes is best equipped to deal with drug 

problems. In most cases, however, the judges have had experience 

with only one or two institutions and tend to recommend those 

with which they are familiar. A probation officer reported that for 

a time after the trial of John Hinckley (who attempted to assassinate President Reagan in 1981 and was found not guilty by reason 

of insanity), during which the federal institution at Butner received extensive publicity, judges were more likely to recommend 

that studies be done at that institution. 

Offender's Arrival at the Institution 

One procedural problem mentioned numerous times by staff at 

Bureau of Prisons institutions is the late arrival of offenders referred for study. For those who are in custody when sentenced, the 

ninety-day period allowed for the study begins on the date of sentencing. Considerable time often lapses between that date and the 

date the person actually arrives at the institution conducting the 

study. The U.S. marshal's office is responsible for transporting offenders to an institution, but timing depends on when buses are 

scheduled to travel, and there may be layovers at one or more in19 
Chapter IV 

stitutions on the way. Lorraine Jensen, chief psychologist at the 

correctional facility in Lexington, gathered data on twenty-eight 

cases in 1980 and found that the mean number of days between 

sentencing and arrival was 25, with a range of 5 to 111. At the very 

least, the delays necessitate requests for extensions of the ninetyday study period, since a large part of the time available for the 

study is gone before the person arrives at the institution. Institutional staff suggested that if the study period could start upon the 

offender's arrival, much paperwork could be avoided. One staff 

member suggested, however, that an offender would be more likely 

to get lost in the system if the time pressures did not motivate institutional staff to locate the person. (Bureau policy requires that a 

staff member contact the U.S. marshal's office if the inmate has 

not arrived at the institution within ten days of the date of the designation to that institution.) 

A second, and related, problem is the late arrival of the probation officer's presentence report and the court's study questions. As 

mentioned previously, much time can be spent contacting a probation office to determine the court's needs and to obtain the historical material needed by the staff. The process for sending study 

questions varies from district to district. In some districts, the questions are ready when the presentence report is completed, and the 

two are forwarded together to the Bureau of Prisons community 

programs manager. In other districts, questions are not drawn up 

until after the observation and study is ordered and are sent to the 

community programs manager several days after the presentence 

report. One district sends questions to the community programs 

manager unless he or she has already designated an institution for 

the observation and study, in which case the questions are forwarded directly to the warden of the institution. It is not clear 

whether the delays originate in the courts or in the community 

programs offices. 

When asked if study questions could be attached to the judge's 

judgment and commitment order, some probation officers doubted 

whether they could be ready in time to be part of the order. One 

judge expressed concern that the judgment and commitment order 

passes through too many hands to be able to ensure the offender's 

privacy with regard to the often very personal study questions. 19 

19. Effective November 1, 1986, 18 U.S.C. § 3552(b), as modified by the Crime Control Act. will require that the judge's order for study specify the additional information desired from the study. 

20 
The Study Process 

Preparation of Study Reports 

The three institutions visited for this study process the observation and study cases in different ways. A special forensics unit conducts the studies at one institution. Its unit manager and case 

manager play the major administrative roles, assigning cases to 

one of the unit's psychologists and, when necessary, to one of the 

two psychiatrists on the unit. The psychologist and psychiatrist 

write independent reports, and the case manager then reads those 

reports, consults with any other unit personnel who might have 

relevant information, and writes the answers to the study questions or, if no specific questions were asked by the court, a case 

summary. 

At the second institution the mental health unit is responsible 

for preparing reports. There, one of the psychiatrists assigns cases 

to a team made up of a psychiatrist, a psychologist, and a case 

manager. The case manager, whose work is supervised by the unit 

manager, is responsible for scheduling tests and interviews, for 

keeping track of deadlines, and for most of the paperwork associated with the study. The psychiatrist and psychologist usually work 

closely together in preparing their reports, also meeting regularly 

with the case manager. After their reports are completed and a 

final team meeting is held, the case manager prepares the answers 

to the study questions or case summary. The summary is reviewed 

by the psychiatrist in charge of all studies, who sometimes rewrites 

it. 

At the third institution, in contrast to the other two, no single 

unit is responsible for the studies. A case management supervisor 

screens all studies and refers them to one of the six units at the 

facility, depending on the special needs of the offender. Within 

each unit a case manager is responsible for administrative handling of the studies. The unit psychologist prepares a report, and if 

a psychiatric report is also requested, the case is referred to one of 

the two psychiatrists at the institution, who are treated as consultants rather than as team members. After the reports are completed, the case manager writes the final case summary or answers 

to study questions. Whether unit staff hold team meetings depends 

on the particular unit. 

Farmer recommended that prison psychologists rather than case 

managers be responsible for integrating study findings in the 

report to be sent to the court. He observed that case managers 

seldom have the training necessary for performing this job and 

that their "efforts seldom improve the insights of the various eval21 
Chapter IV 

uators."20 This recommendation has apparently had little impact. 

The Bureau of Prisons believes that the case manager plays an important role in pulling together the various subject areas that may 

be touched on in the study of a particular defendant. The extent of 

the case manager's role, however, will depend somewhat on the 

nature of the study, with a simple mental health evaluation calling 

for less involvement than, for example, a request for observation or 

for recommendations on an institutional program. Although some 

of the case managers interviewed were obviously comfortable with 

their role in the process, others felt that they add very little to the 

preparation of reports. 

The Standard Study 

Farmer proposed a new model for the conduct of studies by the 

Bureau of Prisons. He strongly recommended that the bureau and 

the courts reject the notion of a standard, predefined study. Instead, he suggested, "[t]he presentence study should be designed as 

a flexible resource to support federal judges in their sentencing responsibility."21 Farmer noted that study reports at that time typically included a psychological report, the results of a medical examination, and the results of educational testing; psychiatric reports were sometimes included. Since most courts were seeking 

psychological evaluations, he proposed that the basic presentence 

study done in response to nonspecific requests provide just a general psychological evaluation and that a more comprehensive evaluation be included only at the court's request. The bureau accepted 

this suggestion; current policy states that if there are no specific 

study questions, the staff is to provide a psychological evaluation 

and a case summary. 

The psychological evaluation is now the core of the study; medical and psychiatric evaluations are done when requested. In the 

twenty-eight sample cases examined, eleven medical evaluations 

and fourteen psychiatric evaluations were performed. The major 

changes since Farmer's recommendations are that fewer medical 

reports are being prepared and, because they are not requested, 

educational evaluations are rarely, if ever, done. Some of those 

interviewed believe that psychiatric evaluations are for the most 

part unnecessary and that a heavy burden is placed on the few institutions that have psychiatrists on their staffs. Ideally, Bureau of 

20. Farmer, supra note 2, at 28. 

21. [d. at 27. 

22 
The Study Process 

Prisons staff determine whether a psychiatric report is appropriate 

given the facts of the case and the questions asked. Customarily, 

however, a psychiatric study is done if the judge's letter contains 

the term "psychiatric," even though the term may be used synonymously with "mental health," as in "Does this person have psychiatric problems?" Many of the judges and probation officers interviewed were not able to define clearly the distinction between a 

psychological and a psychiatric report, and it may be quite common 

for them to request a "psychiatric" evaluation without intending to 

specify that it be done by a psychiatrist rather than a psychologist. 

Instead of fitting Farmer's "flexible resource" model, current 

studies seem to represent only a different version of a "standard 

study." The psychologists and psychiatrists conduct routine evaluations of all offenders referred for observation and study. Psychologists typically use a standard battery of tests because a frame of 

reference must be established before specific questions can be dealt 

with. The only additional testing normally done in conjunction 

with the standard psychological or psychiatric study is neurological 

testing, which is carried out if there are questions about organic 

damage. The psychologists and psychiatrists also tend to use standard interviews. The studies themselves are thus seldom tailored to 

specific questions asked by the court; rather, the reports based on 

the studies are written so as to answer those questions. 

Observation 

Farmer found that few, if any, institutions were using systematic 

observation of offenders' day-to-day behavior. He noted that study 

reports seldom contained comments on the results of the institutional observation, and that when they did, the comments appeared 

to be based on incidental rather than systematic observation. The 

model he proposed for bureau studies excl uded extended observation as a necessary component, suggesting observation only when 

needed to respond to specific questions from the court. Farmer predicted that "[s]hifting observation from a mandatory to an optional 

procedure should result in shorter presentence studies and more 

systematic observation when it is determined to be useful in 

achieving the objectives of a particular study."22 

The current policy of the Bureau of Prisons, in accordance with 

Farmer's recommendation, states the following role of observation: 

22. Farmer, supra note 2, at 28. 

23 
Chapter IV 

Observation should only be used as needed to respond to the 

court's referral questions. If a general observation report is requested, we should include a discussion of the following items: 

(al Response to Supervision 

(b) Respect for Authority 


(el Relationship with other inmates and staff 


(d) Openness with staff 

(e) The kind of associates the inmate chooses 

(f) Use of Leisure time 

(g) Attitude and Work Performance 

(h) Other significant behavior.23 

Most corrections staff members said that they rely very little on 

observation of the offender. The major exception was in one institution in which, because of the physical design of the facility, staff 

members see offenders almost every day in various settings. There, 

they reported that observation is an important part of the evaluations. In daily meetings of the staff, any unusual behavior noted by 

nurses, other inmates, correctional officers, or others is logged into 

the record. 

Although formal observation of the offender is the exception 

rather than the rule, and in spite of the bureau's policy on observation, judges and probation officers unanimously agreed that they 

expect a study to include systematic observation of the offender. 

Several judges said they wanted to know how an offender adjusted 

to the prison situation and how the person dealt with peers and supervisors. None seemed to be aware of the bureau's policy to include such information in a report only if it is specifically requested. Of the twenty-eight cases examined for this research, none 

included specific requests for observation. 

In addition, contrary to Farmer's prediction, a shift from routine 

to optional observation does not appear to have shortened the time 

expended on presentence studies. One reason for this may be the 

report review procedures. 

Time Pressures in the Study and Review Process 

Each institution, as well as the Bureau of Prisons, has a formal 

review process for all study reports. The amount of time allocated 

for review of the reports relative to the amount of time allocated 

for actual study of the offender was a major issue discussed by institutional staff. Bureau policy states that all reports must be in 

23. Bureau of Prisons, supra note 4, at 3. 

24 
The Study Process 

the regional office thirty days after the inmate is committed, and 

that extensions should be requested infrequently and only if absolutely necessary. The institutions examined handle this time pressure in different ways. 

At one institution the staff rigidly adhere to the schedule. The 

psychologist has two weeks to study the offender and write the psychological report. One psychiatrist reported being given only five 

days to prepare a report. As a result of the time pressure, the psychological or psychiatric reports are usua]]y done on the basis of a 

standard battery of tests and most likely a one-hour interview. 

There is almost no reliance on any observation by unit staff or 

others. The case manager then has one week to write the summary 

or answers to study questions before passing them on to the case 

management supervisor's office for review. Between that time and 

the thirtieth day, when it is due in the regional administrator's 

office, the study report goes to the associate warden for programs 

and then to the warden. 

It is not clear how long the reports typically remain in the regional offices, but according to institutional staff, offenders often 

spend several weeks in an institution after observation and study 

has been completed. 

At another institution the staff believe in taking as much time as 

necessary to do what they consider to be a thorough study. They 

request extensions on most studies, and the psychologist and psychiatrist generally see each offender regularly over a four- to eightweek period. This institution, however, handles many fewer study 

cases than the other one described. 

The tremendous emphasis on reviewing study reports at the institutional level and the regional level seems to stem primarily 

from a concern with sentencing recommendations. The Bureau of 

Prisons wants reasonable recommendations to be made; in particular, it does not want the recommendations to appear to be too lenient. Although the regional offices seldom make changes in other 

parts of the study reports, they do sometimes send reports back for 

changes in sentencing recommendations. Farmer observed that regional offices usually did not notify the courts if the offices' recommendations differed from those of institutional staff, providing the 

courts only with the final recommendations. He suggested that regional administrators should give judges complete information regarding any differences in opinion on sentencing, including explanations of any disagreements. The Bureau of Prisons has not 

adopted this policy. Typically, psychiatrists and psychologists make 

no sentencing recommendations in their reports. Case managers in 

one institution, instead of including a specific recommendation on 

25 
Chapter IV 

length of sentence in the study report, place the recommendation 

in the cover letter to the court from the regional administrator, a 

letter that is prepared at the institution but can easily be retyped 

in the regional office. At another institution, case managers include sentencing recommendations in their reports, but only after 

consulting with the regional administrator's office by telephone to 

make sure it will be in agreement with them. 

At least two judges commented that it is not worthwhile to spend 

too much time on administrative review of the study reports. One 

judge said that the cover letter is not very important to him because the only way he can judge the integrity of a study report is 

through the reasons given for the conclusions reached. Another 

judge noted that administrative review may constitute unnecessary 

paperwork; he suggested that a study be done to see how often any 

changes result from such review. As mentioned earlier, most judges 

also said they would like to know who made a sentencing recommendation in order to know how to evaluate it. 

In general, the judges and probation officers interviewed had no 

idea how much time psychiatrists or psychologists actually spend 

with an offender, but many voiced the hope that staff spend at 

least half of the ninety allocated days studying the person. Several 

judges noted that they have heard complaints from offenders about 

their very limited contact (perhaps only one interview) with psychiatrists or psychologists. One judge said that although he could not 

imagine one interview would be sufficient, if it is, then offenders 

should be returning to the court much faster than they are now. 24 

Another judge expressed his view that the value of the ninety-day 

commitment is in the opportunity for the offender to be observed 

on more than one occasion. 

24. Prison staff generally notify the Marshals Service that the offender is ready 

to be returned for sentencing when the study report, including the administrative 

review, is complete. Potential sources of additional lag time in the study process, not 

addressed in this research. are the time between this notification and return of the 

offender to local custody and between the return and the date of final sentencing. 

26 
V. EVALUATION OF REPORTS 


BY THE COURTS 


Judges and probation officers who were interviewed generally 

had few complaints about the observation and study reports they 

receive from the Bureau of Prisons. 25 All said that they read the 

entire reports, and most stated that the reports are neither too 

technical nor too sim plified. They are not bothered by the use of 

psychological or psychiatric terms; many are familiar with the terminology, and some reported having copies of the Diagnostic and 

Statistical Manual of Mental Disorders available for consulting 

when necessary. There was general consensus, however, that the 

reports should be written for judges and not written as if prepared 

for other mental health professionals. Those interviewed also 

agreed that reports should be as comprehensive as possible; as one 

judge stated, "The more they tell me, the happier I am." In fact, 

several judges were concerned that by asking specific questions, 

they risk getting reports that are limited to answering those questions and do not include other valuable information that they did 

not know to ask for. 

In general, the respondents could not say that they find particular parts of the reports to be more or less useful than other parts. 

One judge said it is crucial for the reports to include reasons for 

the conclusions presented, and another judge felt there should be 

more emphasis on the educational and vocational needs of offenders. 

Several probation officers complained that the reports often duplicate the presentence reports they prepare. They feel the observation and study reports should build on the presentence reports and 

not repeat information already available. At the other extreme, 

they mentioned that it is sometimes obvious that the person who 

prepared the study did not look at the presentence report at all, for 

25. Because judges were chosen for this study on the basis of having made referrals at least once during fiscal 1983, there may be a selection bias in the sample. It is 

possible that those who have not been satisfied with the reports simply no longer 

use the process. Nevertheless, a number of those interviewed said they had been dissatisfied with the study reports in the past, but believe there has been improvement 

in recent years. 

27 
Chapter V 

example, when he or she has included information supplied by the 

offender that has been shown in the presentence report to be false. 

Several respondents believe the quality of reports has improved 

as they have begun to send specific study questions to the Bureau 

of Prisons. One judge observed that in the past, reports were too 

general and superficial; but he feels there has been great improvement in the last few years and that the current reports are quite 

good. 

Most judges said the study reports are influential in their sentencing decisions. They approach the reports in different ways, 

some having a sentence in mind before getting the report, others 

leaving all options open until the report is received. Those who see 

a pattern of influence said that the reports tend to lead them 

toward giving more lenient sentences, but most believe there is no 

pattern. One judge believes the reports' influence is often primarily 

superficial. As an example, he described the situation in which a 

community is demanding a harsh sentence, but the report recommends a lenient sentence closer to what he believes is appropriate; 

he can then do what he believes is right while also "looking right" 

because he is following the recommendation of experts. 

Judges and probation officers were asked whether they thought 

it would be useful for the courts to provide regular feedback to the 

institutions on the quality of the reports and how they were used. 

Responses were mixed. Those who felt feedback was a bad idea 

were doubtful that it would really be used and were concerned that 

it would just create more paperwork that no one would read. Several were also concerned about the time that would be spent in 

providing regular feedback. 

Those who favored the idea felt that there should be as much 

dialogue as possible between the courts and the Bureau of Prisons. 

Most agreed that a form or checklist attached to the study report 

would be the most practical means of providing feedback and that 

probation officers should be responsible for filling out the forms. 

Others believed, however, that the most useful feedback would 

result from personal contact between judges and probation officers 

and psychiatrists and psychologists. 

28 
VI. CONCLUSIONS AND 


RECOMMENDATIONS 


Although the judges and probation officers interviewed indicated 

general satisfaction with the reports being prepared by the Bureau 

of Prisons, there is reason to believe that the observation and study 

process is not being used as effectively as it might be. A few simple 

procedural problems should be remedied, and there is a need for 

improved communication between the courts and the Bureau of 

Prisons on a number of topics. The GAO's draft report recommended that the Judicial Conference and the attorney general develop guidelines for the courts for selecting cases and generating 

study questions. 26 The suggestion is a good one; the primary focus 

of improvement, however, should be on a careful analysis of the 

underlying purpose of observation and study. Only when that purpose is well-defined will it be possible to establish smooth, efficient 

procedures and derive the maximum benefit from them. 

Defining the Purposes of Observation and Study 

The observation and study process was adopted at a time when 

rehabilitation was widely accepted as the major goal of sentencing. 

Extensive information was to be gathered on every offender so that 

sentences could be individualized. When special questions, such as 

psychological or psychiatric uncertainties, could not be answered 

through a probation officer's presentence investigation, the observation and study process was to provide a further source of insights 

into the needs of the individual offender. But correctional philosophy has shifted in recent years from an emphasis on rehabilitation 

to an emphasis on incapacitation, deterrence, and retribution. 

These various goals have different implications for sentencing decisions in general and for the use of observation and study in particular. If rehabilitation is the major goal of sentencing, for example, then the obvious candidate for observation and study is an offender who seems to have special psychological needs or problems. 

26. General Accounting Office, supra note 6, 

29 
Chapter VI 

But if incapacitation is the principal consideration, then observation and study is most appropriate for an offender whose potential 

risk to the community is at issue. If general deterrence is the fundamental goal of sentencing, then neither of those types of offender 

may be appropriate for referral. 

At the time Farmer reported on observation and study, Congress 

was considering legislation that would establish policies to govern 

the sentencing process. Farmer noted that in the absence of welldefined sentencing policies, "it [is] difficult to deal with questions 

regarding the proper contribution of observation and study to the 

sentencing process," but that professional evaluations presumably 

playa valid role. 27 Unfortunately the issues have yet to be settled 

by Congress. 28 With or without congressional guidance, however, it 

is important for the Judicial Conference and the Bureau of Prisons 

to engage in open discussion on the purposes of observation and 

study before trying to establish guidelines for selection of cases and 

for development of appropriate study questions. It is only in the 

context of some general agreement on purposes that guidelines can 

be meaningful and usefuL 

Careful Selection of Cases and Study Questions 

The recent emphasis on preparation of study questions may have 

diverted attention from the need for careful selection of cases. A 

long list of questions may be less useful to staff than a simple explanation of why a study is being ordered. Such an explanation 

should accompany every case; it should describe why the offender 

is considered problematic, what sentencing options are being considered, and how the study relates to those sentencing options. Requiring that the study's purpose be made explicit not only would be 

helpful to corrections staff but would lead probation officers and 

judges to assess the potential usefulness of a study before ordering 

it. It is natural when facing a difficult decision to seek additional 

information. But as one judge suggested, the study is often used as 

a crutch, and in many cases additional information may be of no 

real value. Observation and study is expensive and takes staff 

27. Farmer, supra note 2, at v. 

28. Effective November 1, 1986, 18 U.S.C. § 3553, as modified by the Crime Control Act, will specify in broad terms the factors to be considered by the court when 

imposing sentence and require that sentencing be pursuant to guidelines promulgated by the Sentencing Commission, created by section 217 of the act. Until the 

guidelines are promulgated, however, the issue of how observation and study can 

best be incorporated into the sentencing process remains unsettled. 

30 
Conclusions and Recommendations 

away from treatment functions; it should be used selectively-only 

when it can accomplish well-defined goals. 

Although the courts are now sending specific questions with referrals more frequently, significant numbers of cases are still being 

referred without questions, and among the questions being asked 

are some that may not be appropriate for bureau staff to answer. 

There must be increased communication among judges, probation 

officers, and Bureau of Prisons psychologists and psychiatrists concerning what kinds of questions should be asked in study cases and 

what kinds of answers bureau staff should provide. Again, this 

communication can only be useful when it is related to the purposes of observation and study. 

The question of dangerousness is of major concern to judges, yet 

it is perhaps the one question the professionals are most reluctant 

to answer. In light of the positions taken by the American Psychiatric Association and the American Psychological Association, requesting predictions of dangerousness may not be appropriate. 

Judges should at least have a full understanding of the limitations 

of professionals' ability to make such predictions and, thus, evaluate their predictions critically. In addition, bureau staff should be 

required to explain fully their limitations and the bases for any 

predictions they make. 

Questions that solicit sentencing recommendations may also be 

inappropriate. The original notion of a group of experts coming together to decide on the correct sentence for an offender is closely 

tied to the rehabilitative model of sentencing. At one time it was 

popular to think that there was an optimal sentence length, long 

enough for rehabilitative treatment to have an effect, but not so 

long as to impede the offender's return to the community. Little 

faith is currently placed in such a model, and even if it were, the 

model is not accurately reflected by the procedures now in place. 

As described earlier, case managers usually play the major role in 

making sentencing recommendations. Next in importance are the 

institutional administrators and the regional officials, who have 

never met the person being considered. The psychologists and psychiatrists generally play a limited role, if any, regarding recommendations on sentence length. Institutional staff consider the experts in this area to be the case managers, who understand parole 

guidelines and the complex aggregation and good-time formulas 

that determine how much time a person will actually serve given 

the sentence imposed by the court. Requests for recommendations 

on sentence length, therefore, will generally result in answers 

based on average sentences given for similarly situated offenders31 
Chapter VI 

information already available in the presentence report prepared 

by the probation office. 

It is thus recommended that the court frame its sentence-related 

study questions to elicit the kind of information mental health professionals can best provide: judgments about whether the person 

needs active supervision, whether the person is likely to take advantage of various programs, why previous programs have been 

successful or unsuccessful, whether the person needs psychiatric 

treatment if incarcerated, and what degree of structure the person 

needs in his or her environment. Questions framed in terms such 

as these will result in answers based on study of the particular individuaP9 

Improving Communication Between the Courts 

and the Bureau of Prisons 

It was clear from the interviews that communication between 

the courts and the Bureau of Prisons is deficient in a number of 

areas. Judges and probation officers must be well-informed on 

bureau policies and procedures in order to use the study process effectively and meaningfully evaluate its results. The courts, on the 

other hand, need to provide certain feedback to the institutional 

staff who prepare reports. The interviews revealed several specific 

needs for improved communication. 

General Policies and Procedures 

Judges and probation officers were largely unaware of the bureau's policy of providing an observation (as distinct from study) 

report only when requested by the court; they were similarly unaware of its policy to make sentencing recommendations only upon 

request. Many assumed that they would receive observation reports 

and sentencing recommendations for all cases and therefore did not 

specifically ask for them. None of those interviewed knew how 

much of the study period is allocated to administrative review as 

opposed to actual study of the offender. Most also did not know 

29. Effective November 1, 1986, 18 U.S.c. § 3552(b) will require that the study 

report contain recommendations concerning the guidelines and policy statements 

promulgated by the Sentencing Commission that the experts believe apply to the 

defendant's case. As these recommendations are to be included regardless of the 

type of study requested and as their subject matter is not of a type with which 

mental health experts, particularly those in the local community, will necessarily be 

familiar, this statutory mandate is not consistent with the spirit of this recommendation. 

32 
Conclusions and Recommendations 

how sentencing recommendations are arrived at within the institution, nor that the final recommendation may actually come from 

the bureau's regional administrative office. All of the bureau's policies and procedures should be clearly stated and readily available 

to the courts if the process is to be used effectively. Farmer suggested training seminars for judges and probation officers on observation and study issues and a handbook for the courts that would 

serve as an easy reference. It is evident that educational efforts of 

this kind should be pursued. 

Procedures in Individual Cases 

Specific study procedures vary considerably across institutions 

and sometimes across cases within an institution. Judges should 

therefore be given complete information about how each study was 

conducted. Most psychological reports now include the names of 

tests given, but reports should also state how many times the offender was seen by psychologists and psychiatrists (and for how 

many hours), how many team meetings were held, who participated in the team meetings, whether any observational data have 

been incorporated into the report, and, if so, who made the observations. An example of the kind of information that should ideally 

be given, adapted from one of the sample psychiatric reports, follows: 

Extent of Data Base: John Doe was received in the institution on 

August 26, 1983. He was seen initially for one hour and has subsequently been seen individually by the psychiatrist for one half 

hour every week, for a total of five hours. Mr. Doe was given a 

complete physical examination, routine blood tests, urinalysis, and 

a chest X ray shortly after admission. He was given a psychological evaluation and testing; a full report is attached to this report. 

Mr. Doe was observed daily by mental health and correctional 

staff as he went about his daily duties and work assignments. Regular team meetings were held at which his progress was discussed. 

Mr. Doe was interviewed in front of the group of psychiatrists, 

psychologists, psychiatric nurses, and correctional staff, and following the interview Mr. Doe's situation and diagnosis were discussed; opinions have been incorporated into this report. 

A report of the crime story and background information about 

Mr. Doe were provided by the U.S. probation officer of the court. 

This corresponded closely to the information provided by the defendant himself, who was very cooperative and helpful throughout 

the study. Mr. Doe was invited to write his life history and wrote 

a twenty-six-page account of his whole life; many of the following 

details have been taken from that account. 

33 
Chapter VI 

Feedback from the Courts 

Many institutional staff are concerned about lack of feedback 

from the courts. They prepare reports but never find out whether 

the reports were satisfactory to the courts, how they were used, or 

what happened to the offenders. Structured evaluations of every 

report would probably not be functional because the burden of additional paperwork would likely lead to routine answers rather 

than serious evaluations. More important, the courts might not be 

able to provide meaningful feedback on individual reports. When 

questioned about particular cases, judges and probation officers 

had few specific evaluative comments. Since judges receive most of 

their study reports from the same institution, they probably see 

little variation in quality. 

Rather than require routine evaluations, it might be more useful 

to establish a convenient mechanism whereby the courts could 

make comments about individual reports as needed. The courts 

should provide routine feedback to institutional staff, however, on 

the outcome of cases, specifying the final sentence and any treatment provisions. This might be accomplished with a standard form 

and preaddressed envelope attached to study reports, creating as 

little extra work as possible for probation officers. Such feedback 

would be both a simple courtesy to the professionals, who have 

often invested much time and energy in report preparation, and a 

help to them in evaluating their own recommendations. 

Efficient Conduct of Observation and Study 

Three recommended changes could potentially increase the efficiency of the observation and study process, though each involves 

competing practical concerns that would have to be addressed. 

Regional Review of Study Reports 

The Bureau of Prisons should, at a mInImUm, restructure its 

policies regarding the time allocated for actual study versus that 

allocated for administrative review and should also consider eliminating altogether the regional review of study reports prior to their 

submission to the court. Though the Bureau of Prisons believes 

that this review is necessary to provide consistency in the quality 

of reports, its major purpose appears to be the monitoring and possible changing of sentencing recommendations. The rationale is 

that regional review can provide consistency in sentencing because 

regional officials receive cases from many jurisdictions and get a 

34 
Conclusions and Recommendations 

more global view of sentencing patterns. As mentioned earlier, 

however, the court has already been given an even more global 

view of sentencing practices from the probation office. The bureau's regional review process is therefore essentially redundant; it 

considerably reduces the time spent on actual study of offenders 

and results in persons' remaining incarcerated far beyond the allocated study period. The original intent of the Judicial Conference 

and the Congress in establishing observation and study was to 

allow an extended period of time for studying the offender. It is 

doubtful that they intended for more than two-thirds of the ninetyday period to be reserved for administrative review. The determination of the length of the study period, both generally and in specific cases, should be based on the purposes of observation and 

study, not on bureaucratic needs. 30 Regional offices could still 

serve a quality-control function by reviewing copies of the reports 

that have been submitted to the courts and by providing general 

feedback to institutional staff. 

Arrival of Offender and Case Materials at the Institution 

A procedure should be developed to ensure that the probation officer's presentence report and the court's study questions are available at the institution by the time of the offender's arrival. Institutional staff should not have to spend part of the study period locating these materials. The privacy of the offender must be taken into 

account, however, by considering who will have access to sensitive 

materials. 

Institutional staff noted that they also have a problem when a 

portion of the ninety-day study period has elapsed before the offender arrives at the institution. It was suggested that perhaps the 

study period could begin to run upon the offender's arrival at the 

institution or, alternatively, that it might be possible to implement 

a procedure for automatic extension of the lost time in order to 

avoid the paperwork currently required to obtain extensions. Neither of those procedures is recommended here. First, the problem 

of time will undoubtedly be ameliorated if, as recommended above, 

the practice of keeping an offender incarcerated during what can 

be a lengthly regional review process is eliminated. Moreover, it is 

important to remember that though offenders sent for observation 

and study have been convicted, they have not yet been sentenced. 

30. Note that the requirement of the new legislation that the study report contain 

recommendations relative to applicable sentencing guidelines and Sentencing Commission policy statements is likely to provide a stronger impetus for administrative 

review, because administrators are more likely than psychologists, psychiatrists, and 

physicians to be expert in this area. 

35 
Chapter VI 

The court's final judgment may not involve a further period of incarceration from which any additional time spent for study could 

be subtracted. It should therefore continue to be difficult to extend 

the time for observation and study. Because it is transportation difficulties that give rise to the problem in the first place, it is suggested that the Bureau of Prisons investigate possible methods of 

expediting the transportation of offenders referred for observation 

and study. 

36 


THE FEDERAL JUDICIAL CENTER 

The Federal Judicial Center is the research, development, and training arm of the federal judicial system. It was established by Congress 

in 1967 (28 U.S.C. §§ 620-629), on the recommendation ofthe1udicial Conference of the United States. 

By statute, the Chief Justice of the United States is chairman of the 

Center's Board, which also includes the Director of the Administrative Office of the United States Courts and six judges elected by the 

Judicial Conference. 

The Center's Continuing Education and Training Division provides educational programs and services for all third branch personnel. These include orientation seminars, programs on recent developments in law and law-related areas, on-site management training for 

support personnel, publications and audiovisual resources, and tuition 

support. 

The Research Division undertakes empirical and exploratory research on federal judicial processes, court management, and sentencing and its consequences, usually at the request ofthe Judicial Conference and its committees, the courts themselves, or other groups in the 

federal court system. 

The Innovations and Systems Development Division designs and 

tests new technologies, especially computer systems, that are useful 

for case management and court administration. The division also contributes to the training required for the successful implementation of 

technology in the courts. 

The Inter-Judicial Affairs and Information Services Division 

prepares several periodic reports and bulletins for the courts and maintains liaison with state and foreign judges and related judicial administration organizations. The Center's library, which specializes in judicial administration materials, is located within this division. 

The Center's main facility is the historic Dolley Madison House, located on Lafayette Square in Washington, D.C. 

Copies of Center publications can be obtained from the Center's Information Services Office, 1520 H Street, N.W., Washington, D.C. 

20005. 
Federal Judicial Center 

Do"ey Madison House 

1520 H Street. N.w. 

Washington. D.C. 20005 

202/633-6011