Military lawyers admit racial disparities in service justice systems
By COREY DICKSTEIN | STARS AND STRIPES Published: June 16, 2020
WASHINGTON — Black and other minority service members are more likely to face punishment than their white comrades in all of the military services, top uniformed lawyers admitted Tuesday, telling lawmakers that they had yet to determine reasons behind such disparities.
But the services have begun taking steps to understand and address racial disparities within the military’s justice system, the most senior military lawyers for the Army, the Air Force, the Navy and the Marine Corps said during a hearing before the House Armed Services Committee’s personnel subpanel. Committee members implored the lawyers to take the issue seriously and to incorporate experts from outside the military in their search for solutions amid growing national cries in recent weeks for racial equality.
“This is a very grave problem that, if left unchecked, could undermine the [combat] readiness of our armed forces,” said Rep. Trent Kelly, R-Miss., the subcommittee’s top Republican and a brigadier general in the Mississippi Army National Guard. “If you want to stamp out the problem, you’ve got to figure out what that problem is, what the root cause is. I think right now, we are failing horribly at that.”
Data presented by an outside watchdog group showed black service members in the Air Force faced the highest likelihood of facing either nonjudicial or criminal prosecution. Black airmen were 71% more likely than white airmen to be punished, according to the data collected and published last month by the Alexandria, Va.-based group, Protect Our Defenders. In the Army, black soldiers were 61% more likely to face punishment. In the Navy, black sailors were 40% more likely to be punished, and in the Marines, black troops were 32% more likely to be punished than white troops.
Retired Col. Don Christensen, a former chief prosecutor for the Air Force who now leads Protect Our Defenders, told lawmakers Tuesday that he believed white service members simply were given the benefit of the doubt more often than minority troops. Likely, he added, they were offered alternative corrections to their actions from punishment by commanders who are highly likely to be white, too.
He pointed to his own former service as an example.
The Air Force, he said, has the smallest percentage of minority officers among the Pentagon’s services, an issue that he blames largely on a lack of minorities in the fighter pilot community. Across the U.S. military’s fighter and bomber community, fewer than 2% are black. Additionally, of the 61 officers carrying the four-star rank in the military, only two are black. That includes Air Force Gen. Charles “CQ” Brown, who will become the service’s chief of staff in the summer and the first black man to serve as the top officer of any of the military branches.
Rep. Jackie Speier, D-Calif., said she was “shocked” by the data uncovered by Protect Our Defenders, telling the uniformed lawyers that the military cannot ignore the problem.
“We will not solve this problem by hiding it or denying it,” said Speier, the subcommittee’s chairwoman. “The way things have always been done is unacceptable, the results are unacceptable. I hope that all our military leaders in the room can accept that as a starting point for the change we must lead. We must seek new solutions.”
While the hearing was called this week against the backdrop of civil unrest that spread to all 50 states in the weeks since the May 25 killing of a handcuffed black man by Minneapolis police, government watchdogs have been looking at the issue for years.
Protect Our Defenders has examined the problem of racial disparities within the military justice system since at least 2017. Additionally, a 2019 Government Accountability Office report revealed black, Hispanic and male troops were more likely to be investigated than white and female service members and also were more likely to face courts-martial, based on a look at data from 2013 through 2017. The investigation did not reveal significant differences in conviction rates based on sex or ethnicity.
Brenda Farrell, with the GAO, told lawmakers during the hearing Tuesday that Pentagon has yet to implement some recommendations that the organization made to address racial injustices, including launching a comprehensive study to find the causes of such problems.
The military lawyers for the services all indicated they recently have started or soon would start investigations aimed at determining those root causes. In the meantime, they said, they’ve largely pushed to implement more training aimed at identifying unconscious biases military members hold and have started new efforts to recruit more minority troops.
The Army recently has begun an investigation within its Judge Advocate General corps and its law enforcement organizations aimed at understanding why commanders open investigations of black soldiers more often than they do of white soldiers, said Lt. Gen. Charles Pede, the Army’s top uniformed lawyer.
“We’re in the very early stages of figuring out — what can cause this?” he said. “We’re developing framework this very week and last week to figure that out.”
Marine Maj. Gen. Daniel Lecce, the staff judge advocate to the commandant of the Marine Corps, said his service is taking a similar look at the issue. But he said cultural changes must be driven by the Corps’ top leaders.
“Although we have come a long way, we recognize that much must be done,” he said.
The Air Force last month launched a general probe of its military justice system aimed at identifying such racial biases in its system. That probe is due to be completed in the summer.
Lt. Gen. Jeffrey A. Rockwell, the Air Force’s top lawyer, said he was confident in the investigation, which will include interviews with airmen who have said they have faced racism in uniform.
Christensen said the Air Force should consider a fuller study of the issue.
“This is a great start what we’re doing right now — putting [the Defense Department] on notice that this is something Congress is concerned about,” he said. “But I think Congress needs to send a message to the various services that they do not expect that this is going to be a quick solution.”