{"id":12494,"date":"2020-11-11T07:33:16","date_gmt":"2020-11-11T12:33:16","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12494"},"modified":"2020-11-11T07:34:39","modified_gmt":"2020-11-11T12:34:39","slug":"veterans-day-2020-the-troubling-racial-disparities-that-still-exist-in-military-justice","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/veterans-day-2020-the-troubling-racial-disparities-that-still-exist-in-military-justice\/","title":{"rendered":"Veterans Day 2020: The Troubling Racial Disparities that Still Exist in Military Justice"},"content":{"rendered":"

This summer, as the United States reckoned with a history of deep-rooted systemic racism, the United States military was not immune: leadership felt compelled<\/a> to put out statements<\/a> rejecting<\/a> extremism and discrimination, while some lower ranking service members, emboldened<\/a> by the Administration, went public<\/a> with their racist<\/a> views. With 43% racial and ethnic minorities<\/a>, the armed forces have committed to doing better, but in a Military Times <\/a>survey<\/a> of military members, the number who said they had witnessed racism jumped from 22% in 2018 to 36% in 2019. As the country once again celebrates American servicemembers, we would be remiss if we didn\u2019t examine the ways in which the military justice system continues to fail minority members of the armed forces.<\/p>\n

Members of the United States Armed Forces are subject to the Uniform Code of Military Justice (UCMJ), and there are two main ways in which service members can face punishment for offenses: court-martial (similar to a civilian criminal trial) and non-judicial punishment (NJP). In 2017, the military human rights organization Protect Our Defenders<\/a> published a study<\/a> of disciplinary actions taken within the Navy, Army, Air Force, and Marine Corps.<\/p>\n

In the study, Protect Our Defenders found that in Army adjudications from 2006-2015, black servicemembers were 61%<\/strong> more likely to face court-martial compared to their white counterparts, and that in the Air Force, black airmen were 71%<\/strong> more likely to face court-martial or NJP than white airmen. The Marine Corps wasn\u2019t that much better, with black Marines 32%<\/strong> more likely to be found guilty than white Marines over the same time period in court-martial or NJP proceedings. Though the study received less data regarding the Navy, it still found that from 2014 to 2015, black sailors were 40%<\/strong> more likely than white sailors to be referred to court-martial.<\/p>\n

This past June, the House Armed Services (HASC) Military Personnel Subcommittee held a hearing titled \u201cRacial Disparities in the Military Justice System: How to Fix the Culture.\u201d In testimony<\/a> from the Government Accountability Office (GAO), the GAO found that \u201cBlack servicemembers were about twice as likely as White servicemembers to be tried in general and special courts-martial.\u201d<\/p>\n

Possibly worse, once in court-martial, the GAO found that \u201cminority servicemembers were either less likely to receive a more severe punishment in general and special courts-martial compared to White servicemembers, or there were no statistically significant differences in punishments among racial groups.\u201d As Mark Thompson from the Project on Government Oversight<\/a> puts it, \u201cBottom line: Troops who are racial minorities were more likely to be suspected of and investigated for wrongdoing, but ended up being convicted and punished less or at about the same rate as white troops. In other words, there apparently is some insidious bias in how the military initiates investigations into wrongdoing that leads to more charges than warranted against racial minorities. Either that, or commanders are cutting white troops slack when initiating investigations.\u201d (This data, which combines all of the military branches, makes the above data on the Marines\u2019 disciplinary outcomes all that more stark).<\/p>\n

The Judge Advocates General (top ranking military lawyers) from each military branch also sat on a panel for the hearing, and admitted<\/a> that though they recognized the issue, they did not have concrete solutions.<\/p>\n

Congress\u2019 appreciation of the problem is a start. Section 5401 of the 2020 National Defense Authorization Act<\/a> directs the Secretary of Defense to assess racial, ethnic, and gender disparities in the military justice system and take steps to address the causes of any such disparities, as appropriate.<\/p>\n

However, any systemic changes will require much more work than long-term assessment and re-ordering by military leadership. Much of the problem that has led to such stark racial disparities in the military justice system is embedded<\/a> in<\/a> military<\/a> culture-<\/a> and the military lacks diverse leadership<\/a> to effect positive change. Almost all military disciplinary action occurs at the discretion of military officers, and with over 75% of the officer corps white, systemic bias is not just a function of military justice, it\u2019s a foregone conclusion.<\/p>\n

On June 25th, 2020, a group of West Point graduates released a 40-page policy proposal<\/a>, relating stories of overt racial abuse, telling of disparate and severe punishments compared to white cadets, and recommending multiple actions to begin creating an anti-racist West Point. Similar calls for renewed focus on racial equity have sprung up at the other military service academies, like the Naval Academy at Annapolis, where Midshipman First Class Sydney Barber will be the first African American woman<\/a> to hold the position of Brigade Commander this spring. These institutions build the officer corps of tomorrow, a hopefully more diverse and less biased community.<\/p>\n

In the meantime, the military continues to wrestle with persistent racial injustice within its ranks, just like the rest of our country. Many<\/a> veterans\u2019<\/a> groups<\/a> are now asking<\/a> for change. As the first institution to desegregate in 1948, the armed forces have long been held up as a bastion of tolerance and good will. Though those beginnings have afforded many people opportunities, the United States military still has a long way to go before it can be considered equal for all.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

As the country once again celebrates American servicemembers, we would be remiss if we didn\u2019t examine the ways in which the military justice system continues to fail minority members of the armed 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