Scholarship Saturday: Racial bias in military justice
By Isaac Kennen
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 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 13.8 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.