Black service members were “substantially more likely” to face judicial punishment or administrative discipline compared to their white counterparts while in uniform, according to an advocacy group’s study of racial disparity in the military justice system.
The Protect Our Defenders report released Wednesday found in the Air Force black airmen were 71 percent more likely than their white counterparts to face court martial or non-judicial punishment, among the highest of the four military branches reviewed.
In a conference call with reporters Wednesday, Protect Our Defenders President Don Christensen called on Congress to review the findings and take action to resolve racial disparities.
“Protect Our Defenders is very concerned that the military not be allowed to once again use more simply a bumper sticker response to a crisis,” said Christensen, a former Air Force chief prosecutor and a retired colonel.
“The military has now said that the disparity is very important to them and this is something that they are concerned about,” he said. “… The time is now for Congress to demand an outside review, not one staffed by generals who will brush this under the rug but experts on racial disparity and figure out why this disparity exists and how do we eliminate it.”
Racial disparities in the ranks reviewed
Air Force spokesman Zachary L. Anderson said the findings indicating “any numbers suggesting bias in the military justice system were concerning.”
“The Air Force works hard to prevent unlawful discrimination in all of our processes, particularly military justice, and will continue to do so,” he said in email.
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Depending on the service branch, black military service members were between nearly 1.3 to about 2.6 times as likely as white counterparts to face judicial or disciplinary matters, the report said.
Protect Our Defenders examined data between 2006 to 2015 for each service branch, except the Navy which provide two years of statistics, the group said.
The report urged military prosecutors, and not commanders of the accused service member, determine when to refer a case to court-martial proceedings to “reduce the potential for bias based on familiarity, friendship, race or ethnicity.”
It also recommended each service branch should publish data on racial and ethnic judicial involvement and outcomes; track crime victim data to determine if bias exists pertaining to victims of particular races and ethnicity; and find out the causes of racial disparity in the justice system and how to address the problem.
Anderson added the Air Force has targeted the issue of bias within the ranks.
In 2015, the service branch began both “unconscious bias training” for senior leaders to combat the issue, and the Judge Advocate General Corps started a senior legal officer orientation course for group and wing commanders that included recognizing “implicit and explicit biases,” Anderson said in an email.
A group of Air Force senior leaders, he added, have worked to break down “unintended barriers” that may hurt diversity within the workforce.
“Diversity and inclusion are a national security imperative, and we understand in order to recruit and retain a diverse population of Airmen, they must have confidence in a system free of unlawful discrimination,” Anderson wrote.
Among the other military branches, the Protect Our Defenders report found:
In the Army, black soldiers were 61 percent more likely to face a special or general court martial than white service members; in the Navy, black sailors were 40 percent more likely to face similar initial proceedings than white sailors.
In the Marine Corps, the report found black Marines on average were 32 percent more likely to be found guilty at a court martial or administrative proceeding than their white counterparts, and that increased to more than twice as likely as the seriousness of the offense increased.
“The persistence of racial disparities within the military may indicate the existence of racial bias or discrimination among decision-makers in the military justice system,” the report said.
Pentagon spokesman Johnny Michael said the Defense Department has had a long-standing policy that “service members must be afforded the opportunity to serve in an environment free from unlawful discrimination,”
The department will review, he added, “any new information concerning implementation of and compliance with this policy once given the opportunity to review the report.”
Among the military’s officer corps, 77 percent were white and 8.75 percent black, Defense Department statistics show. Among enlisted personnel, 66.7 percent were white and 18.8 percent black.
Merle Wilberding, a Dayton attorney and former Army lawyer, noted the long-standing “major disparities” in the civilian criminal justice system between incarcerations for blacks and whites.
The disparities uncovered in the Protect Our Defenders findings “may be more of a systematic bias, sometimes overt and sometime subconscious,” he added in an email.
“Historically, the military has fixated on its military justice system being a part of its overall disciplinary system, and that is why the military has strongly opposed eliminating the commander role in referring cases to courts-martial and reviewing court-martial convictions,” he wrote in an email.
Under military law, commanders may have the authority to overturn a service member’s conviction.
Wilberding said he would support Congress taking away that authority, but unit commanders should retain the right to refer a case for criminal proceedings as long as a judge has control over the charges in the matter.
“I do not think the statistics quoted in the report by Protect Our Defenders would change significantly just by eliminating the commander’s role in the military justice system,” he wrote in an email. “In either event, these statistics justify a renewed analysis and a renewed commitment to training and education at all levels of the military to make the system transparent and more equitable.”
A message seeking comment on the report was left Wednesday with U.S. Rep. Mike Turner, R-Dayton, and a member of the House Armed Services Committee.
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