Advocacy group accuses military justice system of racial bias

Black members of the military are more likely to face military justice or other disciplinary actions than their white counterparts, according to a new study from a leading advocacy group.

“Protect Our Defenders calls on Congress to investigate these new findings, and provide recommendations for fixing this problem that affects every branch of the Armed Forces,” retired Col. Don Christensen, former chief prosecutor of the Air Force and president of Protect Our Defenders, said in a statement Wednesday. “Military leadership has been aware of significant racial disparity in its justice process for years, and has made no apparent effort to find the cause of the disparity or remedy it.”

Protect Our Defenders based its findings on Freedom of Information Act requests for demographic information in military justice and disciplinary proceedings.

The group found that, depending on the service branch and type of action, black troops were at least 1.29 times and as much as 2.61 times more likely than white troops to have an action taken against them in an average year.

The disparities were particularly troubling, the report says, because by its nature the military controls for certain factors that account for disparities in civilian justice systems. For example, recruits have to pass rigorous standards on past criminal justice involvement, educational attainment and illicit drug use.

“Top brass has also vigorously opposed any suggestion that the commander-controlled justice system is hindered by conflicts of interest or bias and has gone to great lengths to tout the fairness of the system,” Christensen said. “However, the military’s own data raises serious challenges to the idea that the system in its current form is capable of delivering impartial justice.”

From 2006 to 2015, black Marines were 2.61 times more likely than white Marines to receive a guilty verdict at a general court-martial, according to the report. But a guilty finding in a non-judicial punishment proceeding was only 1.29 more likely.

In the Air Force, from 2006 to 2015, black airmen were 1.71 times more likely than white airmen to face court-martial or non-judicial punishment in an average year, the report says.

During the same period in the Army, black soldiers were 1.61 times more likely than white service members to face general or special court-martial, according to the report.

The Navy provided information only for 2014 and 2015. During that period, the report says, black sailors were 1.4 times more likely than white sailors to have their case referred for military justice proceedings and 1.37 times more likely to have military justice or an alternative disposition action taken against them.

But the Navy also provided case-level information that showed little to no disparity after the case was referred, the report adds. In 2014, 68 percent of white sailors with a case referral were diverted from special or general court-martial, compared to 67 compared of black sailors.

Findings for other racial groups varied. Asian sailors and soldiers, for example, appeared less likely have their case referred to military justice proceedings or have action taken against them than their white counterparts, according to the report.

Michael Wishnie, of the Veterans Legal Services Clinic at Yale Law School, called the Protect Our Defenders report “extremely important.”

“This report demonstrates why the military must swiftly and forcefully address unequal treatment of service members based on their race or ethnicity,” he said in a statement provided by Protect Our Defenders.

“Clinic clients have included a number of black veterans who suffered discrimination based on race in the military justice system, including some who have alleged in federal court that their bad paper discharge violates equal protection.”