Racism in the Military Justice System: The GAO Responds

By:  Kathleen Gilberd; reprinted with permission; originally printed for Committee Opposed to Militarism and the Draft newsletter, Jan.- Mar. 2020 

The military portrays itself as an equal opportunity employer, prohibiting racial discrimination, punishing racist behavior and offering strong careers to people of color. The reality is far different: African-Americans and other people of color serve predominantly in the lower ranks and perform less glamorous jobs.
Discrimination and preferential treatment in assignments to jobs, career-enhancing duties and training opportunities remain significant problems. The military’s equal opportunity system, which allows for discrimination complaints, is largely ineffective. Outside evaluations by civilian organizations continue to show organizing efforts by racist and fascist groups within the military. Recent studies have shown a significant pattern of racism in the military’s justice system, exposing disproportionate numbers of minority servicemembers to courts-martial and other punishment.

This last issue was brought to public attention in 2017, when Protect Our Defenders, an advocacy group for survivors of military sexual assault and harassment, published a report showing that African-American servicemembers were referred to courts-martial at significantly higher rates than white members. The report, based on Freedom of Information Act requests to the military branches, generated considerable concern and led to a Congressional mandate that the Government Accountability Office (GAO) conduct a formal investigation on this issue. House Report 115-200, accompanying the National Defense Authorization Act for Fiscal Year 2018, included a provision for GAO to report on data about racial, ethnic and gender differences in handling of disciplinary cases in the military justice system.

The GAO report, “Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities,” made a number of findings and recommendations. Foremost among these:

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“Blacks, Hispanics, and males were more likely than Whites or females to be tried in general and special courts-martial in all military services;

“Race was not a statistically significant factor in the likelihood of conviction in general and special courts-martial;

“The services do not record information on race and ethnicity the same way, making it more difficult to identify disparities.”

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In general, GAO found that servicemembers of color, particularly African-Americans, were referred to special and general courts-martial at higher rates than their white counterparts, and that women were less likely than men to be sent to these courts-martial. (While these courts-martial are not quite parallel to civilian trials, special courts-martial are roughly equivalent to misdemeanor cases, and general courts-martial to felony cases. The great majority of small offenses are handled in less formal proceedings, non-judicial punishment and summary courts-martial, where normal due process is limited and the accused are not provided the full rights available in special and general courts-martial. These non-trial proceedings are often used for accusations that would not be considered offenses in the civilian world -- such as showing up late for work or being disrespectful to a supervisor.)

GAO based its findings on records kept by the various military branches between 2013 and 2017, as more recent figures were not yet available. During those years, more than 258,000 military personnel were sent to courts-martial or non-judicial punishment, out of 2.3 million servicemembers. Looking at a mix of military databases reporting these cases, GAO found that African-American troops were twice as likely as whites to receive general or special courts-martial in the Army. For the Marine Corps, they were 1.99 times as likely; in the Navy, 2.01 times as likely; and in the Air Force, 1.51 times as likely. Court-martial rates for Latinx servicemembers were elevated, but not to the same degree as African-Americans. In the Marine Corps and Air Force, African-American servicemembers were more likely than whites to receive non-judicial punishment and summary courts-martial, while the other services lacked data to track disparities in these proceedings.

The report stated that GAO did not find significant disparities in court-martial conviction rates between people of color and white troops, nor disparities in sentencing. This came as a surprise to attorneys and advocates handling military cases, who have seen large disparities in sentencing and a higher likelihood of punitive discharges (Bad Conduct or Dishonorable Discharges) as part of court-martial sentences. Because courts-martial are the equivalent of federal convictions, and punitive discharges are commonly awarded at sentencing, they create lifelong problems for those who are found guilty of offenses. Since GAO did not take into account the types or severity of criminal allegations in the cases it reviewed, nor the actual guilt or innocence of the accused, the lack of difference in convictions and sentences may well be underestimated.

GAO pointed out that the military did not keep records of courts-martial cases in standardized and thorough ways from service to service, making it difficult to come to precise conclusions. While racial disparities clearly exist, the problems in military record-keeping make precise evaluation of the extent of the problem difficult.

Interestingly, the GAO report did not make efforts to determine the causes of this systemic bias, though it recommended that the military should look into the reasons for it.

This issue came back to Congress in its consideration of the 2020 National Defense Authorization Act. This Act, recently signed into law, includes a requirement that the Department of Defense standardize its data collection on courts-martial, capturing information about both victims and the accused. It also requires the military to identify “the causes of any racial, ethnic, or gender disparities identified in the military justice system” and to take action “to address the causes” of these disparities.

Sources:

Government Accountability Office Report GAO-19-344, publicly released: May 30, 2019, “Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities,” https://bit.ly/36nqbaY.

 

Military Times, December 19, 2019, “Armed Forces to Track Race, Ethnicity and Gender of Criminal Suspects,” by Geoff Ziezulewicz.

 

Protect our Defenders report, June 7, 2017, “Racial Disparities in Military Justice,” https://www.protectourdefenders.com/disparity/.

Kathleen Gilberd is Executive Director, National Lawyers Guild Military Law Task Force.