Why do Black troops face a harsher form of military justice?

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.

Kevin Dietsch/AP
Gen. Charles Q. Brown, Jr., nominated for reappointment to the grade of General and to Chief of Staff of the U.S. Air Force, testifies during a Senate Armed Services Committee nominations hearing on Capitol Hill in Washington on May 7, 2020.

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The military is under pressure to fix racial disparities within its justice system, after the U.S. Government Accountability Office report 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.

In the Air Force, efforts to address racial disparities have included efforts to recruit more Black officers: Last month the Air Force increased the number of full-tuition scholarships available at historically Black colleges and universities by roughly 60%. The service has also launched “unconscious bias” training.

One encouraging conclusion of the GAO report is that, though Black service members across all military branches were more likely to be prosecuted, they were no more likely to be convicted.

This may bode well for future initiatives. “I think the Air Force can fix this. We’re the younger service, the more progressive service,” says Coretta Gray, a former officer in the Air Force Judge Advocate General's Corps. “We’re in a better position to lead than almost any other service.”

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.

“That’s a decision that truly should not have been made,” retired Col. Don Christensen, who previously served as the Air Force’s 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. “I have never seen anybody court-martialed for the sole offense of being six minutes late to a meeting – other than this African American.”

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 “getting the benefit of the doubt, whether based upon the relationship, implicit bias, explicit bias, whatever it was,” while Black troops aren’t.

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. “This report raises difficult questions – questions that demand answers,” Lt. Gen. Charles Pede, judge advocate general for the U.S. Army, told lawmakers. “Sitting here today, we do not have those answers.”

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 “consistent and persistent and getting worse.”

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 “had no right to freedom from harassment and physical violence, in large part because the military police frequently chose to attack rather than protect them,” 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. “I am not a n* soldier – we are American soldiers,” 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 “n*s and would be treated as such.” The three soldiers were thrown in jail, charged with inciting to riot, which was “not an entirely bad outcome considering that armed white MPs frequently patrolled the Black neighborhoods of Houston and viciously beat Black soldiers,” 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. – among U.S. troops executed after courts-martial in Europe, 80% were Black, though they comprised only 10% of U.S. forces – Gen. George Marshall, then-Army chief of staff, threatened to fire commanders who did not “personally and vigorously” address racism. He also ordered better training for MPs, the use of Black MPs, and new grievance procedures for Black troops, Dr. Bristol says. “The new policies worked, and although incidents still occurred, their frequency and number diminished greatly.”

But while the military has taken “tremendous strides” to end institutional racism, it still has “a long way to go towards addressing” 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. “My anticipation going in was that it would be just like anywhere else in America – yes, we have issues with race, but that it’s more of a meritocracy.”

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 “don’t want to tear everybody up or to be prejudiced,” 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 “failure to go,” or being late for work or a meeting. Marijuana charges are “usually” 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 “failure to go” charges gave Air Force officials pause. “Is the white supervisor treating Black and white airmen the same the first time they’re 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,” 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, “I’ve literally heard in that meeting, ‘These Black airmen just get in trouble more.’”

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, “Hey, you better get yourself back to base before you’re declared AWOL,” Major Gray notes. “I don’t think we arm those front-line supervisors with enough training.”

As a result, young supervisors may treat discipline “less professionally and more like a social club,” she says. “It’s about whether ‘I know you and we go out on weekends and you helped me move,’ versus ‘You get this paperwork because I only see you at work and we don’t connect.’”

For troops inclined towards racism, it can also be a chance for “personal prejudice to have a ton of room to run,” she says. This might include giving a new recruit they don’t like “all the bad tasks, making them work overtime, punishing them for not wearing their [hat] before they go outside – all the high school bullying stuff, but with real consequences.”

If people complain about unequal treatment, they can easily be gaslit, Major Gray says. “They’re told, ‘You took that wrong,’ or ‘I’m sure they were just joking,’ or ‘There was some other reason you didn’t get that particular job or training opportunity.’ Sometimes it’s, ‘They just don’t like your attitude.’

“But why is it that it’s all these Black females who have an attitude? Some have told me, ‘I was literally sitting in my resting face, and he told me I had an attitude.’”

There’s often a legitimate reason for disciplinary action, particularly among new troops, and “of course you should be on time to meetings,” Ms. Gray says, “so these cases for the most part run in a way that it’s hard to point out any racism directly.”

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 – the letters of counseling, admonishment, and reprimand – that generally don’t account for courts-martial in themselves, but when they accumulate can be used to build a bigger case for a denied promotion or dismissal.

“I can already hear people groaning, ‘Oh, another metric to track,” Ms. Gray says. “But the perception is that you’re not going to get the benefit of the doubt if you’re Black. I’ve seen it.”

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, “We acknowledge that the numbers tell a story, and we need to get to the bottom of why those numbers reflect what they do.”

Aiming higher

It doesn’t help military justice, officials say, that the officer corps isn’t 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. “I see new JAGs go through the same thing and you’re trying to convince them to stay.” He tells them, “I wouldn’t have spent 30-something years in the Air Force if I didn’t think this is a good place to be. They need to have the impression that somebody does care – that somebody does understand what it’s like to be the only person in the room.”

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 “conversation starter,” Colonel Orr says. “It will help keep people from committing unforced errors.”

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, “except for Black service members in the Navy were less likely to be dismissed or discharged after a conviction,” Brenda Farrell, director of the GAO’s 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 – and in some cases, less likely – to be convicted. “That makes sense from what I saw,” Major Gray says. “Once you make it to the court-martial and have all eyes on it, it evens out. It shows that the system works – not always, but mostly.”

This bodes well for future initiatives to address racial disparity, analysts add. “I think the Air Force can fix this. We’re the younger service, the more progressive service,” Major Gray says. “We’re in a better position to lead than almost any other service.”

It will be an ongoing effort, top military officials say. “Our struggle against racism and other forms of discrimination cannot be viewed as finite battles,” Lt. Gen. Jeffrey Rockwell, judge advocate general for the Air Force, told lawmakers. “Rather our approach must be infinite, a constant struggle for betterment.”

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