Earlier this month I noted the National Archives’ new retention policy on “non-trial” federal district court records created since 1970. The Associated Press reporter Michael Tarm published a story on the policy last Friday, entitled Millions of US Court Records Bound For Shredder. Here is an additional report, relating to criminal case files, which I can make thanks to some communications from Michael J. Churgin, a professor at the University of Texas Law School and chair of the Committee on Documentary Preservation of the American Society for Legal History.
The policy in question, N1-21-11-1, is being considered by the National Archives and Records Administration (NARA) in consultation with the Administrative Office of the United States Courts. It would treat all court files in federal criminal cases created between the 1776 and 1970 as permanent records. It does the same for (1) “case files dated 1970 or later which were terminated during or after trial”; (2) “any criminal case file determined by court officials or by NARA to have historical value”; and (3) “non-trial criminal cases relating to treason and national security or to embezzlement, fraud, or bribery by a public official.” (The national security and treason offenses include alien registration, treason, espionage, sabotage, sedition, Smith Act, and exportation of war materials.)
Two classes of records are deemed temporary. First, under an earlier policy (N1-021-86-1), “misdemeanor and petty offense proceedings conducted by U.S. magistrate judges in cases not assigned a district court docket number” will be destroyed five years after closing. An appraisal conducted for NARA last May explained that the records “document minor routine offenses, such as traffic offenses on Federal property, that have no historical value.”
The second class of temporary records are non-magistrate criminal cases from 1970 on that never reached the trial stage, aren’t deemed to have historical value, and don’t relate to sedition or public corruption. According to the NARA’s appraisal, these case “are generally routine in nature and do not contain the substantive documentation that might make them useful for research.” If they cannot be donated, NARA will dispose of them 15 years after a file was closed. Trial cases, the appraisal opined, “will provide sufficient documentation of the operation of the criminal judicial system.” The largest categories of offenses in this class involve drugs (about 25 percent), immigration (about 25 percent), and property and firearms (about 30 percent).
This summer, Professor Churgin, on behalf of the ASLH’s committee, asked that NARA sample and permanently preserve files from this second class of temporary records. Churgin contrasted the proposed policy for criminal cases with that instituted for bankruptcy cases. Initially, many bankruptcy records created after 1940 were to be destroyed, but after Churgin assured NARA that “bankruptcy records certainly are not regarded as of limited interest by historians,” sampling was instituted. The precedent of the Harvard's Bankruptcy Data Project doubtless was influential. The project had already published several studies based on a random sample of 1500 to 2500 individual bankruptcies filed under Chapter 7 and Chapter 13 from ten districts for 1981, 1991, and 2001. The procedures NARA ultimately adopted will create a much larger and broader sample. For each district and every year, 2.5 percent of the “temporary” files will be preserved.
Churgin commented that “the strength of the bankruptcy schedule . . . is the use of sampling" and asked that non-trial criminal cases be sampled as well. After all, he observed, drug and immigration cases speak to “major issues of national policy." He directed NARA’s attention to California Rule of Court 10.855, which provides for the sampling of the trial and non-trial files of the state's superior courts.
Churgin also suggested that more immediate interests than those of historians and their readers were at stake. This summer the U.S. Sentencing Commission unanimously voted to give retroactive effect to a proposed amendment of the sentencing guidelines to reduce the sentences of federal crack cocaine offenders “who meet certain criteria established by the Commission and considered by the courts.” Had the NARA’s proposed policy been in place, Churgin remarked, “the case file records of countless inmates still in federal custody, who originally pled guilty, would already be destroyed.”