It's hard to envision when the destruction of records by a private party is a crime.  The only case I can really think of is the destruction of records in anticipation of a government investigation which I believe would lead to an obstruction of justice charge.  There might be special cases such as firms involved in the selling of securities where criminal penalties could be triggered.  But I doubt that an investigation would get that far without an allegation of something more serious.

In thinking about this I did some searching and came across this interesting 2012 report issued by the Ethics Resource Center: "The Federal Sentencing Guidelines for Organizations at 20 Years: A Call for More Effective Promotion and Recognition of Effective Compliance and Ethics Programs. The report identifies 4 specific challenges to the use of the sentencing guidelines to promote organizational culture of compliance


1.       Most cases are settled before trial so the sentencing guidelines do not come into play

2.       There is no consistency between the more than 20 different government agencies that have a role in corporate law enforcement and regulation

3.       The sentencing guidelines are principle based to provide flexibility. Unfortunately this makes assessing compliance difficult and contentious

4.       Too many executives see corporate compliance as a check the box initiative rather than something that should be integrated into an organization's daily operations
http://www.ethics.org/files/u5/fsgo-report2012.pdf

I will not go into details of their recommendations - but while reading this I was reminded of an article in the NY Review of Books by Judge Jed Rakoff who criticized the justice department for filing charges against corporations without filing charges against any of the people who work for and/or run those same corporations and who actually did the wrongful deeds.   He describes a process which I think ties back into the Ethics Resource Center Report and perhaps even to the question of people going to prison for the destruction of records.

He notes that if you file charges against individuals in corporate corruption cases you work it the same way you would handle an organized crime case.  You start with low level people "flip" them and work your way up the chain.  But if you file charges against a corporation you see an entirely different scenario.  I have extracted his explanation below.


"Early in the investigation, you invite in counsel to the company and explain to him or her why you suspect fraud. He or she responds by assuring you that the company wants to cooperate and do the right thing, and to that end the company has hired a former assistant US attorney, now a partner at a respected law firm, to do an internal investigation. The company's counsel asks you to defer your investigation until the company's own internal investigation is completed, on the condition that the company will share its results with you. In order to save time and resources, you agree. Six months later the company's counsel returns, with a detailed report showing that mistakes were made but that the company is now intent on correcting them. You and the company then agree that the company will enter into a deferred prosecution agreement that couples some immediate fines with the imposition of expensive but internal prophylactic measures. For all practical purposes the case is now over. You are happy because you believe that you have helped prevent future crimes; the company is happy because it has avoided a devastating indictment; and perhaps the happiest of all are the executives, or former executives, who actually committed the underlying misconduct, for they are left untouched."
http://www.nybooks.com/articles/archives/2014/jan/09/financial-crisis-why-no-executive-prosecutions/

So what does this have to do with people going to jail for the destruction of records.  Destruction of records - even in the limited cases where it is a crime - is not like a bank robbery that gets reported on the local news. Usually it is investigated because of other legal issues and most often resolved before trial.  So I think that pretty much explains why the destruction of records, in and by themselves would rarely result in someone being sentenced to prison.


David Gaynon
Huntington Beach CA
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