Why do Black troops face a harsher form of military justice?
Two years ago, the U.S. military decided to prosecute a Black service member for being six minutes late to a meeting, bringing his case to a court-martial hearing and, ultimately, a conviction.
鈥淭hat鈥檚 a decision that truly should not have been made,鈥� retired Col. Don Christensen, who previously served as the Air Force鈥檚 chief prosecutor, told lawmakers in a House Armed Services Committee hearing last month, citing the incident as evidence of racial bias inherent in the U.S. military justice system. 鈥淚 have never seen anybody court-martialed for the sole offense of being six minutes late to a meeting 鈥� other than this African American.鈥�
Though he never prosecuted anyone he thought was innocent, he says, nor did he ever see any of his colleagues doing this, Colonel Christensen, who now runs the service member advocacy group Protect Our Defenders, says the problem is that white troops are 鈥済etting the benefit of the doubt, whether based upon the relationship, implicit bias, explicit bias, whatever it was,鈥� while Black troops aren鈥檛.
Why We Wrote This
Cultural shifts in the U.S. military have often served as a bellwether for larger social change. By taking on racism in its criminal justice system, the Pentagon might reveal ways to address broader injustice.
A U.S. Government Accountability Office report released last year backs these concerns. It concluded that within the military, allegations against Black service members are more than twice as likely to be brought to a court-martial hearing as those against white service members.
Now the Defense Department is under pressure to find out what is going wrong and to fix it. 鈥淭his report raises difficult questions 鈥� questions that demand answers,鈥� Lt. Gen. Charles Pede, judge advocate general for the U.S. Army, told lawmakers. 鈥淪itting here today, we do not have those answers.鈥�
In the wake of the GAO report, lawmakers added a provision in the most recent defense budget requiring all services to track the same data on racial disparities within the military justice system, to root out causes and find solutions. Critics point out that there has been ample missed opportunity to do just that, however: Pentagon studies over the years have concluded that racial disparities since 1972 were 鈥渃onsistent and persistent and getting worse.鈥�
A legacy of discrimination
It was as America mobilized for World War II that U.S. military leaders became increasingly concerned about racism in its ranks. Black troops assigned to Southern bases 鈥渉ad no right to freedom from harassment and physical violence, in large part because the military police frequently chose to attack rather than protect them,鈥� notes Douglas Bristol, associate professor and specialist in Black military history at the University of Southern Mississippi.
In a disturbingly discriminatory incident typical of the era, three Black soldiers in Houston were having drinks on their night off base when a white policeman called them the n-word. One of the GIs corrected him. 鈥淚 am not a n* soldier 鈥� we are American soldiers,鈥� he said. The cop told the Black troops that if they objected again he would kill them. When the cop called for backup, a white MP responded to the scene, telling the Black soldiers that they were in the South where they were 鈥渘*s and would be treated as such.鈥� The three soldiers were thrown in jail, charged with inciting to riot, which was 鈥渘ot an entirely bad outcome considering that armed white MPs frequently patrolled the Black neighborhoods of Houston and viciously beat Black soldiers,鈥� Dr. Bristol says.
Top military commanders generally dismissed racial discrimination as an unavoidable problem from civilian life until, that is, it began posing a threat to the war effort. When anger over mistreatment caused riots to break out among Black troops at bases throughout the U.S. 鈥� among U.S. troops executed after courts-martial in Europe, 80% were Black, though they comprised only 10% of U.S. forces 鈥� Gen. George Marshall, then-Army chief of staff, threatened to fire commanders who did not 鈥減ersonally and vigorously鈥� address racism. He also ordered better training for MPs, the use of Black MPs, and new grievance procedures for Black troops, Dr. Bristol says. 鈥淭he new policies worked, and although incidents still occurred, their frequency and number diminished greatly.鈥�
But while the military has taken 鈥渢remendous strides鈥� to end institutional racism, it still has 鈥渁 long way to go towards addressing鈥� racial disparities in its ranks, says retired Maj. Coretta Gray, who was inspired to join the Air Force after her mom served as a military nurse and her dad as a space and missiles officer. 鈥淢y anticipation going in was that it would be just like anywhere else in America 鈥� yes, we have issues with race, but that it鈥檚 more of a meritocracy.鈥�
A double standard
While she was serving in the Air Force as a judge advocate general, or lawyer, however, Major Gray, who is Black, saw disparities in how Black and white troops were treated. Though most supervisors 鈥渄on鈥檛 want to tear everybody up or to be prejudiced,鈥� they do behave in ways that are, often inadvertently, discriminatory, she says.
As the Air Force began to dig into their data, they found two offenses most likely to show discipline disparities by race. One is marijuana use, and the other is known as 鈥渇ailure to go,鈥� or being late for work or a meeting. Marijuana charges are 鈥渦sually鈥� the result of random urinalysis, based on the generation of social security numbers by health services, says Ann Stefanek, chief of Air Force Media Operations.
The 鈥渇ailure to go鈥� charges gave Air Force officials pause. 鈥淚s the white supervisor treating Black and white airmen the same the first time they鈥檙e late for work? Maybe the young white airmen from an area with limited diversity encounters a Black airman for the first time, and maybe the way they deal with each other is completely different,鈥� Ms. Stefanek says.
For her part, Major Gray says, when she took part in regular meetings with commanders on the status of discipline in various units, 鈥淚鈥檝e literally heard in that meeting, 鈥楾hese Black airmen just get in trouble more.鈥欌��
The disciplinary record may actually bear that out, she adds, but the charges often hinge on how minor infractions of new service members are handled by young supervisors. One airman may be punished for going AWOL, for example, while another may be told, 鈥淗ey, you better get yourself back to base before you鈥檙e declared AWOL,鈥� Major Gray notes. 鈥淚 don鈥檛 think we arm those front-line supervisors with enough training.鈥�
As a result, young supervisors may treat discipline 鈥渓ess professionally and more like a social club,鈥� she says. 鈥淚t鈥檚 about whether 鈥業 know you and we go out on weekends and you helped me move,鈥� versus 鈥榊ou get this paperwork because I only see you at work and we don鈥檛 connect.鈥欌��
For troops inclined towards racism, it can also be a chance for 鈥減ersonal prejudice to have a ton of room to run,鈥� she says. This might include giving a new recruit they don鈥檛 like 鈥渁ll the bad tasks, making them work overtime, punishing them for not wearing their [hat] before they go outside 鈥� all the high school bullying stuff, but with real consequences.鈥�
If people complain about unequal treatment, they can easily be gaslit, Major Gray says. 鈥淭hey鈥檙e told, 鈥榊ou took that wrong,鈥� or 鈥業鈥檓 sure they were just joking,鈥� or 鈥楾here was some other reason you didn鈥檛 get that particular job or training opportunity.鈥� Sometimes it鈥檚, 鈥楾hey just don鈥檛 like your attitude.鈥�
鈥淏ut why is it that it鈥檚 all these Black females who have an attitude? Some have told me, 鈥業 was literally sitting in my resting face, and he told me I had an attitude.鈥欌��
There鈥檚 often a legitimate reason for disciplinary action, particularly among new troops, and 鈥渙f course you should be on time to meetings,鈥� Ms. Gray says, 鈥渟o these cases for the most part run in a way that it鈥檚 hard to point out any racism directly.鈥�
The biggest step the military could take toward substantiating some of these biases, whether conscious or unconscious, is through the tracking of low-level administrative paperwork 鈥� the letters of counseling, admonishment, and reprimand 鈥� that generally don鈥檛 account for courts-martial in themselves, but when they accumulate can be used to build a bigger case for a denied promotion or dismissal.
鈥淚 can already hear people groaning, 鈥極h, another metric to track,鈥� Ms. Gray says. 鈥淏ut the perception is that you鈥檙e not going to get the benefit of the doubt if you鈥檙e Black. I鈥檝e seen it.鈥�
Col. Bill Orr, associate director of the Air Force judiciary and a retired JAG and military trial judge, agrees, particularly since the racial disparities overwhelmingly crop up among younger troops. His department plans to begin tracking this data, he says. Adds Ms. Stefanek, 鈥淲e acknowledge that the numbers tell a story, and we need to get to the bottom of why those numbers reflect what they do.鈥�
Aiming higher
It doesn鈥檛 help military justice, officials say, that the officer corps isn鈥檛 more diverse. For example, when he retired in 2014, Col. Christensen told lawmakers, only 1 in 124 colonels in the Air Force JAG Corps were Black. Throughout the Pentagon, 78% of officers are white, and 8% are Black. There are two African American four-star generals in the U.S. military.
Colonel Orr, who is Black, says he remembers what it feels like to be the only Black officer in the room. 鈥淚 see new JAGs go through the same thing and you鈥檙e trying to convince them to stay.鈥� He tells them, 鈥淚 wouldn鈥檛 have spent 30-something years in the Air Force if I didn鈥檛 think this is a good place to be. They need to have the impression that somebody does care 鈥� that somebody does understand what it鈥檚 like to be the only person in the room.鈥�
In the wake of the HASC hearing, the Air Force last month increased the number of full-tuition scholarships available at historically black colleges and universities by roughly 60%, in an effort to get more Black officers into its ranks.
The Air Force has also launched unconscious bias training, designed to point out inadvertent ways in which service members and leaders may be perpetuating racism. It will be an important 鈥渃onversation starter,鈥澛燙olonel Orr says. 鈥淚t will help keep people from committing unforced errors.鈥�
One encouraging conclusion of the GAO report is that in terms of convictions and punishment, there is no statistical difference between Black and white troops, 鈥渆xcept for Black service members in the Navy were less likely to be dismissed or discharged after a conviction,鈥� Brenda Farrell, director of the GAO鈥檚 Defense Capabilities and Management Team, told lawmakers.
In other words, she said, though Black service members were more likely to be prosecuted, they were no more likely 鈥� and in some cases, less likely 鈥� to be convicted. 鈥淭hat makes sense from what I saw,鈥� Major Gray says. 鈥淥nce you make it to the court-martial and have all eyes on it, it evens out. It shows that the system works 鈥� not always, but mostly.鈥�
This bodes well for future initiatives to address racial disparity, analysts add. 鈥淚 think the Air Force can fix this. We鈥檙e the younger service, the more progressive service,鈥� Major Gray says. 鈥淲e鈥檙e in a better position to lead than almost any other service.鈥�
It will be an ongoing effort, top military officials say. 鈥淥ur struggle against racism and other forms of discrimination cannot be viewed as finite battles,鈥� Lt. Gen. Jeffrey Rockwell, judge advocate general for the Air Force, told lawmakers. 鈥淩ather our approach must be infinite, a constant struggle for betterment.鈥�
