Pentagon & Congress

Frustrated advocates say racial biases within military justice system remain despite repeated alarms

The military’s top legal officers conceded on Tuesday that racial disparities still exist within the military justice system, and said that improvements need to be made. But lawmakers and advocates say that overdue acknowledgement isn’t enough.

“We’ve got to quit talking about some of these things that may or may not be the problem, and we have to figure out what the root causes are,” said Rep. Trent Kelly, R-Miss., a former district attorney and current Army Guardsman. “I think right now, we’re failing horribly.”

Members of the House Armed Services Committee on Tuesday voiced concerns that despite numerous indications in recent years that minority black service members are more likely treated unfairly in the military justice system, service leaders have done little to research or address the discrepancy.

A Government Accountability Office report released in May 2019 found evidence that black and Hispanic troops were more likely than their white peers to be investigated by military commanders and tried in courts-martial, but not any more likely to be found guilty.

They also found inconsistencies in how racial data related to court cases is collected, and chastised military leaders for being slow to react to the report recommendations a year after they were released.

The GAO findings echoed similar work by the outside advocacy group Protect Our Defenders, which has fought with service officials for years over the release of the legal data. Retired Col. Don Christensen, president of the group, said military officials have had some of the information for decades but largely kept close hold of it.

“There is a long track record of doing nothing,” he told lawmakers.

Tuesday’s hearing came amid a national conversation on racial inequities prompted by the death of George Floyd, an unarmed black man who died while being arrested on May 25. Four former Minneapolis police officers — fired after the killing — have been charged with crimes as a result. One, Derek Chauvin, has been charged with murdering Floyd.

Military officials at the event said that diversity and equality are core values of the military, but acknowledged that isn’t enough to prevent problems in how minorities are treated by the military bureaucracy.

“As good as our justice system is, we can never take for granted its health or its fairness,” said Lt. Gen. Charles Pede, Judge Advocate General for the Army. “It requires constant care by well trained law enforcement educated commanders and qualified attorneys, working together with Congress.”

He and leaders from the other services said military leaders are looking into the problems raised in the GAO report and potential solutions to address them. An Air Force Inspector General report is due later this summer.

“We have to get after this,” said Maj. Gen. Daniel Lecce, Staff Judge Advocate to the Commandant of the Marine Corps. “We’re at the beginning, but there is a lot of work to be done. Commanders need to drive this.”

But committee members said those types of promises so far have amounted to “little more than some unconscious bias training” and not enough aggressive action.

"The way things have always been done is unacceptable, the results are repugnant,” said Rep. Jackie Speier, D-Calif. and chairwoman of the committee’s military personnel panel. “I hope that all our military leaders in the room can accept that as a starting point for the change we must lead. We must seek new solutions.”

Last year, as part of the annual defense authorization bill, lawmakers mandated an assessment of “racial, ethnic and gender disparities within the military justice system” amid concerns about the problems.

Military officials said they are still working on that analysis, but Speier noted that the work could have started years earlier without congressional intervention. “It would have been a whole lot better if (the idea) came from you.”

The Defense Department witnesses said several reports are due later this summer, and promised increased focus on the topic. Committee officials in turn promised increased scrutiny on the topic until they are confident Pentagon leaders have made it a priority.

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