In March of this year, in Pena-Rodriguez v. Colorado (SCOTUSblog case page), the Supreme Court invoked the “imperative to purge racial prejudice from the administration of justice” and used that command to pierce the rule protecting the secrecy of juror deliberations.  Slip. op. at 13. The Court found that Colorado Rule of Evidence 606 (equivalent to M.R.E. 606) could not stand in the way of an accused’s right to probe the verdict for evidence of racial bias:

[T]he Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

Slip. op. at 2. The Court explained:

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.

Slip. op. at 13. It is against that backdrop that questions regarding whether the military justice system is racially biased has joined the already feverish discussion regarding the system’s handling of sexual assault.

Ten days ago, Newsweek asked “Is the Military Racist?” A headline in USA Today added: “Black troops as much as twice as likely to be punished by commanders, courts.” NBC reported: “Black Troops More Likely to Face Military Punishment than Whites.” And McClatchy newspapers noted: “Black troops far more likely to face military punishment in every service branch.”

The genesis of all of this recent media attention is a new report by Protect Our Defenders (POD), Racial Disparities in Military Justice. POD’s report is based off data provided by each of the service branches showing that non-white service members are much more likely to face nonjudicial punishment proceedings and courts-martial than their white counterparts. The data for the report goes back to 2006 for all service branches except the Navy, which only provided data back to 2015.

POD’s study does not attempt an explanation for these inequities. But, it does propose remedies. First, POD recommends further data collection and research, including collecting data comparing the race of the victim to the race of the accused. Additionally, POD recommends that commanders lose prosecutorial discretion and that military prosecutors make charging decisions instead. The theory behind this recommendation is that military prosecutors would be less familiar with the race of the persons involved in the case, and therefore less likely to make disposition decisions influenced by racial bias. Report at 16. This premise seems shaky given the realities of criminal prosecution in the military. The prosecutor would quickly learn the racial identity of the interested parties as soon as they flipped through the investigation report.

Instead, it seems likely that the problem of racial disparity in the handling of military justice is related to, if not caused by, the lack of diversity in the officer corps. In 2015, the U.S. Census reported that 13.3 percent of the U.S. population identified as Black or African American. In contrast, according to the DoD’s reporting, only 5.3 percent of Marine officers, 6 percent of Air Force officers, 7.9 percent of Naval officers, and 12.7 percent of Army officers fell into that demographic group. It is not clear that the demographics for the various JAG Corps are any better.

The services already, undoubtedly, make concerted and honest efforts to check racial bias in the disposition of offenses. Military commanders tend to be a conscientious bunch who genuinely endeavor to treat the personnel entrusted to them with fairness. But, racial bias is a stubborn and subtle foe, even for people who are genuinely on the lookout for it. It seems likely that there is only one real solution to the problem of racial bias in the military justice system – increasing the diversity of the officer corps.

16 Responses to “Scholarship Saturday: Racial bias in military justice”

  1. Philip D Cave says:

    As I’ve noted elsewhere, an interesting point once there was a referral.

    In 2014, 68% of white sailors with a case referral were diverted from special or general court-martial, compared to 67% of black sailors. There was also little difference between the rates for 2015 (74% of white sailors and 75% of black sailors). The proportions of black and white sailors convicted at special or general court-martial were highly similar as well.

  2. k fischer says:


    I differ in opinion with your recommendation as being the only way. If the solution is making the UCMJ decisionmakers more diverse, then there are two solutions. (1) Fill Officer bullets based on racial quotas so that the legal decision makers are more diverse; or (2) Give legal decision making authority to a group of legally trained individuals whose branch’s diversity is comparable to society.

    How do you think option one is going to affect mission readiness compared to option two? Which option will be more apt to remove UCI and the appearance of UCI, or better yet, expose UCI when it happens? I’m with POD on this one, Chief-a-rooni. A Command driven Military Justice system should be replaced with a lawyer driven system. I think Commanders ought to breathe a sigh of relief when this happens, so they aren’t blamed and their promotions withheld when they do what they feel is the right thing.

  3. k fischer says:

    Speaking of racial bias in Justice issues, anybody following that the Commonwealth of Pennsylvania used US Army Government darling expert civilian forensic shrink, Dr. Veronique Valliere, in their case in chief in Commonwealth v. Cosby?

  4. stewie says:

    1. Heathcliff is guilty as sin. That guy makes OJ look almost reasonable.
    2. Racial bias in our justice system is pervasive throughout our society (and humanity). It’s ubiquitous and at every level. From who gets pulled over to who gets arrested to who gets charged and with what to the punishments give out. As with many things, as an AA I feel that the military tries harder than society to get it right, but by no means has solved that particular human failing. Much of it is subconscious and certainly most people will say that they don’t have a racist bone in their body it’s other folks that do. And that’s understandable and in a way a good thing because it means we’ve at least pushed the problem away from the overt and conscious to the subtler and unconscious.
    3. How to fix it? I don’t know. Obviously racial quotas are not the answer. I don’t think a ton changes with giving it to the lawyers…are the JAG Corps any more diverse than the population at large? I don’t think so. I think education is the only real answer to a very long-term problem. Much like sexism or other isms. We are getting there, just too slowly.

  5. Vulture says:

    Other factors require evaluation for their influence before a conclusion:
    General Ward: Misappropriation of funds, was demoted and retired
    General Pitard: Inappropriate contract influence, was demoted and retired
    General Lewis: Use of government funds at a strip club, was demoted and retired
    These African American high ranking officers send a mixed signal to the issue at hand because it further deepens the divide that there are those ‘good guys’ that slipped and those bad guys that must be ‘excised for the cancer that they are.’  The statistics vastly oversimplify.  But if someone was to say “Khaki lives matter!”  I would have to agree.

  6. Concerned Defender says:

    One great thing about the military is that it’s such a melting pot I’ve never seen or heard of any racial bias, frankly.   I think Service Members are actually quite color-indifferent and generally see the uniform and rank and judge behavior and not race.  I genuinely believe that.  I’ve trusted my life to blacks, whites, asians, hispanics, etc. without a second consideration.  And I bet nearly all Service Members experiences are like mine.   I’ve never personally seen or experienced a case where I thought a black or white was treated better or worse based on race.  Sure, it might happen, but it’s such an anomaly that I’ve never even seen it. 
    The real issue is sex inequality in charging crimes.  So while we are at it, instead of a fabricated problem, let’s look at a real problem:  Sex based decision making in charging and convicting.  I all-but guarantee that males are disproportionally representative in sex assault prosecutions and convictions over females.  I’d like some answers on why that is…  with facts and not stereotypes.  

  7. PositiveJustice says:

    I agree with ConcernedDefender. In my 15 years experience in active duty it is primarily a persons behavior that is judged not their race. Other than different groups tending to hang out with people similar to them such as by race or even interest (i.e. Motorcycle riders for example) I normally see no differences. 
    I believe the services should start referring as many cases to civil litigation and prosecution rather than dealing with them period other than cases that require military prosecution for military specific articles that have no civil equivalent or for jurisdictional purposes. If it’s bigger than NJP then divert to civilian system stateside. 
    I would like to point out that there are far more areas of discrimination than race, such as sex, whether or not someone attended a service academy, special forces members, marital status*, children, and my personal interest HIV discrimination. 
    In the military and in civilian courts HIV positive citizens are prosecuted for actions that caused very little and sometimes even zero chances of transmission without any intent of transmission. 
    These people have very little defense against these allegations, which they are legally required to provide their status to their partners. 
    In many instances their partners use this information to threaten coerce and blackmail the positive individual. 
    And as with racial bias I feel there is even more bias against people with HIV by judges juries and society as a whole.
    With the current medical advancements in HIV care making it almost impossible to transmit on treatment, the criminilization against these HIV people has become a human rights issue. 

  8. stewie says:

    lol anyone who says they have never seen racism in the military is either absolutely blind, not a minority, lying, or some combination.
    Is it better than society at large? Absolutely. Is it somehow nonexistent or not a problem? LOL

  9. stewie says:

    Vulture, there are multiple competing issues. Racism does not mean that every single interaction in a system is racist. It does not mean that every single AA officer gets a worse sentence. We have multiple biases…we give advantages to female accused over male sometimes, white over minorities, officers get better treatment often than enlisted.  Some of those advantages and disadvantages can overlap.
    Other advantages and disadvantages are earned ones (career history, bravery, prior misconduct). They all mix in together.

  10. Tami a/k/a Princess Leia says:

    Ironic that this report is by the POD people.  Black service members are more likely to be prosecuted for false accusations of sexual assault.  When will the POD people acknowledge that?

  11. Vulture says:

    Stewie.  The Houston Riots was and still are the largest murder trial in US history with the African American Accused being executed without appeal.   That was WWI and up until 2011 this was still being explained away in the Army Lawyer and shortly thereafter at a conference at Texas Southern University, a HBCU.  The Buffalo Soldiers Museum is in Houston (the soldiers were transported from New Mexico to Camp Logan) and people still are aware of it, as ancestors.  But checking,with the Adilson Library, The City of Houston Archives, they never heard about the “Lore of the Corps.”
    Don’t preach to me about the complexities.  I’ll take up CD’s melting pot motif; if all the colors where truly melded together, what do you think they would be?  Would it matter?

  12. stewie says:

    Don’t talk to me about the colors melting together, I’m living proof of melded colors. The point remains that we have disparities all over our criminal justice systems civilian and military alike. Folks only see the ones they want to see though.

  13. Defense Wizard says:

    While the military has the potential to be the most color-blind meritocracy in our civilization, not seeing racism is a privilege generally enjoyed by those not subject to it. That said, I have serious questions about the study. Then again, I have serious questions about POD, because sometimes I get the sense that they would cite to The Invisible War as accurate because it furthers their narrative. POD’s policy recommendations tend to all be the same, in that they want to take prosecution decisions away from the command and give them to the lawyers. Their rationale is ridiculous; that somehow the lawyers wouldn’t know the race of the accused, as if the prosecutor wouldn’t watch the interviews before drafting a charge sheet, like Isaac discusses. Give me a break.

  14. some guy says:

    Why would anyone think that removing prosecution decisions from commanders who have a 2 to 1 bias track record and giving those decisions to civilians/attorneys who have a 6 to 1 bias track record would reduce bias? 
    If anything, the evidence suggests that civilian prosecuting attys should be cut out of the loop and all criminal justice – state, local, and federal – should be transferred to military courts where commanders make decisions – if your goal is to reduce bias.

  15. k fischer says:

    This doesn’t give me a lot of confidence that the lawyers can do anything better than Commanders: 

  16. Wannabe Kenobe says:

    The biggest problem is that we allow victims to decide whether a case goes to trial.  At least in the AF, our regs require us to get victim input on every important decision, including whether to accept a chapter 4.  Even though our JAGs and CCs may not be racist, we are leaving important decisions in the hands of young victims.  In my limited 13 years experience, I’ve seen Discharges In Lieu of Trial be supported by victims, and therefore granted, more often when the accused is the same skin color as the victim.  I’ve also seen victims be less likely to support a Discharge in Lieu of Trial when the accused is a different skin color.  I’d love to see statistics on this, but alas, I don’t think the AF or any other service keeps track.  The bottom line:  It doesn’t matter if your system is Non-racist if you are unwilling to go against the victim’s recommendation… because the victims are sometimes racist.  I’m with Tami – it’s odd to see the POD people pointing this out for us