Déjà Vu All Over Again: Racial Disparity in the Military Justice System

Defense Secretary Mark Esper recently came to the realization that, “the murder of George Floyd was a wake-up call …. We know we’re not immune to what is happening in broader society, that society that we serve.” Despite his characterization of this moment in American race relations as a “wake-up call,” the United States armed forces have been mired in a maddening loop of racial disparity with respect to its own military justice system for over half a century.

In 1972, a task force commissioned by President Richard Nixon’s defense secretary sought to determine the nature and extent of racial disparities in the military justice system. The task force found that the key factors driving the disparities included inadequate educational and advancement opportunities and the resultant lack of diversity in the leadership corps. The 1972 DOD Task Force on the Administration of Military Justice in the Armed Forces was able to reach these conclusions despite being hampered by a lack of statistical information regarding race and ethnicity as kept by the services. (Barry K. Robinson, one of the authors of this piece, was an Air Force JAG officer assigned to the task force.)

This past June, nearly 50 years later, the House Armed Services (HASC) Military Personnel Subcommittee held a hearing entitled, “Racial Disparities in the Military Justice System: How to Fix the Culture.” One of the principal takeaways from the hearing was that a lack of reliable, consistent data stood in the way of pinpointing the root causes of these disparities. But DOD leadership need not wait for all the data to come in – it must to continue on listening tours of not only enlisted personnel and officers, but, as the task force did in 1972, speaking with chaplains, medical officers, and visiting small business owners and other community members to get a full picture of military life for minorities on and off-base. As Vice Chairman of the Joint Chiefs Gen. John Hyten recently implored personnel, “tell us exactly what’s bothering them.” These stories will be the most important data points to obtain.

Civilian and military policymakers must also turn to history for compelling examples of how proper leadership, even in the absence of all the data, can achieve powerful results, rather than re-inventing the wheel.

For instance, a year before the 1972 task force embarked on its work, the small but entire contingent of Black cadets then enrolled at West Point successfully halted the erection of a Confederate statue on the Academy’s grounds. In a case that eerily mirrors events of today, Nixon, their commander-in-chief, was seeking to build a monument to Confederate war dead as a way to curry the Southern vote in a re-election year. Fifty years later, a group of young West Point alumni, understanding and inspired by this history, petitioned West Point’s leadership to create an “anti-racist” institution. They, like their cadet predecessors as well as the 1972 task force, offer solutions that need not be predicated on first collecting enough data.

History repeating itself: Congress holds a hearing on racial disparities in the military justice system going over the same groundwork laid in 1972

At the June HASC hearing, a witness from the Government Accountability Office (GAO) testified that service members of color are twice as likely to face court martial as their White comrades and were also more likely to face non-judicial punishments meted out by commanding officers. According to the GAO’s written testimony, “Racial disparities exist in investigations, disciplinary actions, and punishment of service members in the military justice system.”

Despite these jarring statistics, the GAO testified that it was not in a position to determine whether these figures were the result of unlawful discrimination. It noted that DOD had taken some steps to study racial disparities, but “has not comprehensively evaluated the causes …to identify actions to address” them. On a second panel featuring Judge Advocates General from the U.S. Army, Navy, Air Force, and Marine Corps, the top ranking military lawyers from each branch also said they were not in a position to opine on the root causes of this disparity. As Army Lt. Gen. Charles Pede testified,

While [the GAO] reached no conclusion on the causes of these disparities, this report raises difficult questions – questions that demand answers. Sitting here today, we do not have those answers.

Air Force Lt. Gen. Jeffrey Rockwell echoed this sentiment, stating,

The fact that disciplinary racial disparity in the aggregate has persisted despite the adoption of significant institutional changes demonstrates the complex and challenging nature of the issue, symptomatic or indicative of one of many symptoms. The problem is daunting and complex; but that should not stop us from asking and exploring what we can do in military justice and the disciplinary process to serve as part of the solution set.

Congress has been actively legislating in this arena. Section 540I of 2020 National Defense Authorization Act directs the defense secretary to, among other things:

  • establish criteria to determine when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed; and describe how such a review should be conducted.
  • conduct an evaluation to identify the causes of any racial, ethnic, or gender disparities identified in the military justice system;
  • take steps to address the causes of any such disparities, as appropriate

In 1972, however, the Task Force on the Administration of Military Justice in the Armed Forces (“Task Force”) commissioned by then-Defense Secretary Melvin Laird, a Republican appointed by Nixon, asked and answered many of the same questions that seemingly continue to vex military and civilian policymakers nearly 50 years later. The Task Force’s charge was to:

  • Determine the nature and extent of racial discrimination in the administration of military justice
  • Assess the impact of factors contributing to disparate punishment
  • Judge the impact of racially-related practices on the administration of military justice and respect for law, and
  • Recommend ways to strengthen the military justice system and “enhance the opportunity for equal justice for every American service man and woman.”

The 1972 Task Force concluded that the

military does not stand apart from the society it serves and is not immune from the forces at work in that society. As long as there is racial discrimination in American society… there will be racial discrimination in the military.

The Task Force concluded that the military system does discriminate against its members on the basis of race and ethnic background – but, more often than not, that discrimination was not intentional, but systemic. While the military had led the nation in desegregation, and took other active measures to combat intentional discrimination, such as forbidding the use of racial epithets, it had long been slow to act to combat systemic discrimination. The Task Force identified testing, job assignments, and promotions as the primary “post-entry factors,” which exacerbated pre-entry factors such as societal racism, educational, and economic disadvantages, and era-specific factors such as the racial turmoil of the late 60s, the unpopularity of the Vietnam War, the draft, and military installations located in then-still segregated areas of the country and world. While in 1972 the Task Force found overt racism was not as widespread as systemic discrimination, in February of this year, a Military Times survey found that

more than one-third of all active-duty troops and more than half of minority service members say they have personally witnessed examples of white nationalism or ideological-driven racism within the ranks in recent months.

Fifty years ago, the Task Force grappled with many of the same questions that Congress and the military continue to struggle with today. Five areas highlighted by the Task Force in 1972 remained front and center in the June 2020 HASC hearing.

50 years later, racial disparity in the military justice system persists in strikingly similar ways

The GAO’s 2019 analysis concluded that racial disparity exists in the number of minority service members identified for punishment in the military justice system, but there was little disparity in the severity of punishment once in the system. The GAO also found that, “Black service members were more likely than White service members to be tried in summary courts-martial and to be subjects of non-judicial punishment in the Air Force and the Marine Corps.”

The 1972 Task Force found the same thing: “There is clearly a discernible disparity in disciplinary rates between black and White servicemen” but “no discernable disparity in quantum of punishment between White and minority servicemen for like infractions of the Uniform Code.” Likewise, a greater number of Black enlisted men receive non-judicial punishment. Alarmingly, the Task Force found that in the Army, of the White personnel reported for major military and civilian crimes, 23.3 percent were counseled (i.e. corrective action, short of punishment was taken by their commanders) compared to only 8.3 percent of Blacks reported for the same type of offense. In the Marine Corps 19.2 percent of incidents involving Whites resulted in non-judicial punishment, while only 10.4 percent of the incidents attributed to Blacks resulted in similar dispositions.

So, not only do the disparities continue across nearly five decades, but they appear to persist in the same pattern: Minority service members are more likely to be brought before the military justice system. Once within the system, however, the outcomes in terms of conviction rate do not differ, nor are punishments more severe for personnel of color than their White counterparts. The most disturbing statistic, however, is that the choice of whether to administer punishment, which is often up to the commander prior to invocation of the judicial system – appears to strongly disfavor Black and Hispanic personnel. For over a half century, DOD has been aware that personnel of color are more likely to face non-judicial punishment, and half as likely to be counseled rather than punished, as opposed to their White comrades.

As Gen. Pede testified, the Army is intensively focusing its attention to the “left of the allegation,” i.e. determining why there is an overrepresentation coming into the investigative system, or “left of the disposition decision to send someone to trial.” One possible reason he theorized? Implicit bias. The general noted that significant progress had been made examining implicit bias nearly a decade ago in the area of sexual assault and, as a result, implicit bias training is now replete throughout the armed services. We note that this occurred also in large part due to overwhelming advocacy, congressional scrutiny, and legislation.

Consistent and useful data remains as elusive 50 years later

In a May 2019 report, the GAO found that:

The military services did not collect consistent information about race and ethnicity in their investigations, military justice, and personnel databases. Thus, the military services are limited in their ability to identify disparities (i.e., instances in which a racial or ethnic group was overrepresented) in the military justice system. The military services were not required to, and thus did not, report demographic information that would provide greater visibility into potential disparities in their annual military justice reports.

In particular, the number of potential responses for recording race and ethnicity across 15 separate military databases ranges from 5 to 32 options for race and 2 to 25 options for ethnicity. For example, the Army’s personnel database maintains 6 options for race and 23 options for ethnicity, whereas the Coast Guard’s personnel database maintains 7 options for race and 3 for ethnicity. The military has used this data deficit to explain or justify why it can’t determine the root causes for the racial disparities that everyone acknowledges still exist. As the Navy’s JAG testified, “The GAO noted that consistent data could enable DoD and the services to evaluate the causes of disparities, and better position them to address the causes and help ensure that the military justice system is fair and just.” We knew this in 1972 when the Task Force did not allow this data deficit to stymie its conclusions.

In fact, one of the first findings of the 1972 Task Force was that, “Throughout our consideration of [factors contributing to disparities], the Task Force or the staff were hampered by the inadequacy or unavailability of statistical information regarding ethnicity or race as it is kept by the services.” [Emphasis added]. The Task Force report recommended that

Racial and ethnic identity codes be updated and a uniform system of data gathering be established to acquire data on a racial and ethnic basis concerning the military justice system and in other areas impacting on military justice, such as promotions, job assignments and administrative discharges.

While these identity codes appear to have been updated in the wake of the 1972 report, lack of data, or inconsistent recordation of such data across the services continues to be a problem, but one which did not prevent the Task Force from identifying the root causes of racial disparities in the system.

Lack of advancement opportunities are correlated to disparate punishment rates

Despite a general avoidance by witnesses in the June hearing to opine on the root causes of the disparities, bipartisan questioning coalesced around several that continue to plague the branches: career advancement opportunities and promotion rates. Republican Rep. Trent Kelly, himself a brigadier general in the Mississippi National Guard, insisted that the military must “figure out the root causes” for the disparities, but then noted that military occupational specialties hold the key to advancement: “What are we doing to get African American kids into the better jobs in the armed forces that lead to promotions?” he queried. “If you’re not a fighter pilot you’re probably not going to make general…if you’re not a submariner or surface ship guy you’re probably not going to make admiral.” Democratic Congressman Anthony Brown, himself a veteran, noted that Air Force promotion rates reflect the lack of inclusion stemming from the fact that less than 3 percent of the fighter pilot community is Black – and there are fewer fighter pilots of color today than there were Tuskegee Airmen during the Second World War. Lack of these opportunities in prestige tracks in turn leads to lack of role models and mentorship for soldiers, sailors, airmen, and marines.

In 1972, the Task Force reached the same conclusion. It identified “the four leading factors which contribute to disparity in punishment between minority and non-minority servicemen are: testing, job assignment, promotion and equal opportunity programs.” Notably, the Armed Forces Qualification Test (AFQT) was criticized as being culturally biased and testing more for majority cultural norms than actual aptitude. Future placements in military occupations were almost entirely dependent on this threshold test. Poor testing results led to placement in so-called “soft-core” military specialties as opposed to “more profitable and prestigious ‘hard-core jobs.’” The effect is to “to place a handicap on a serviceman who comes from other than a majority environment.”

The 1972 Task Force underscored the plight of the minority serviceman by quoting a Black sergeant:

When you come in, you take the AFQT. If you haven’t had a good background and a good high school or college education, or experience in electronics, into supply and transportation and other “soft-core” areas you go….I got a substandard education compared to the white NCO’s my age. They can progress because their better education put them in another career field where the progression rate is faster…In the administration field where I am in, my score has got to be phenomenal, or I am out of it, in terms of promotion. That is what is killing us.

The Task Force recommended that the defense secretary assist in facilitating access to improved education opportunities through all constitutionally acceptable means. While their focus was on helping racial and ethnic minority groups, providing greater access to education, including test-prep for recruits seeking it, should benefit all service members of any race coming from economically and educationally disadvantaged backgrounds.

Lack of minority officers

A related issue to that of being pigeonholed in military specialties with little hope of advancement is the dearth of minority officers. Democratic Congressman Gil Cisneros (also a veteran) lamented the lack of diversity in the officer corps noting that today 78 percent of the officer corps is White, 8 percent is Black, with even fewer Latino and Asian officers.

Again, it is exasperating to read the 1972 report and note that the Task Force observed:

It is not necessary to belabor the point of these statistics that the armed forces comprise an institution of society, which is largely white at the top and in the middle, but is becoming increasingly diverse racially toward the bottom…. Our purpose is to point out the effect on minority enlisted men’s attitudes towards an officer corps, which is easily observed to be almost entirely white. These men will, inevitably in our judgment, resent leadership by a corps which does not contain a proportion of minority officers nearly equivalent to the proportion of minority members in the service… this causes a distrust of both the military system and the military justice system.

Anti-Black backlash from late 1960s to 2020 West Point

Former Air Force chief prosecutor, retired Col. Don Christensen, testified that young officers in the JAG Corps and throughout the services depend on having mentors who can help them progress and ensure they have access to continuing professional development opportunities, which is key to promotion. However, he noted, at the very places dedicated to producing the next generation of military leaders, such as West Point, Black cadets continue to report horrific racial discrimination.

Nine days following the hearing, a group of West Point alumni issued a 40-page policy statement chronicling overt racial abuse experienced by cadets from enduring racial epithets to finding a noose placed in a Black cadet’s room, to, unsurprisingly, facing disparate and more severe punishments than White cadets who committed the same infractions. One of their principal objections was to endemic anti-Black backlash at the Academy, which often takes the form of a distorted paradox of cadets of color being heralded as examples of diversity and inclusion, but who themselves are not allowed to celebrate their own Blackness, which they are told is considered anathema to the ideals of a colorblind military. The wrote:

There are far too many recent examples of West Point publicly lauding the diversity of its graduates and its Corps of Cadets without protecting them from racist backlash. Just four years ago, the 16 Black women graduates in the Class of 2016 took a photo together, an annual commemorative event for this identity group, with their fists raised. The public leak of this photo led to immediate judgment and condemnation for allegedly making a political statement in uniform. These women faced an immense amount of public hatred and were threatened with expulsion from the Academy, just days before graduation, which would have caused them to incur huge debts to the military. Though they ultimately were not officially punished, the “Proud 16” should not be considered a historic milestone of institutional growth. The Academy failed to protect these cadets from or punish the racism that they experienced in the aftermath of this photo. It has never recognized the culpability in its own passivity which comes as a convenient by-product of White silence.

The 1972 Task Force similarly documented an anti-Black backlash in the military toward service members of color who deigned to express pride in their race:

Among blacks, there tends to remain the mistrust, fear, and suspicion of both white people and a white society which 300 years of inferior treatment have ingrained in them. And there is a new attitude which we believe would not have been so clearly observed ten years ago as it is today. It is an attitude on the par of many young black men and women of increasing pride in their blackness and rising defiance of white efforts, both real and perceived to relegate black to inferior roles. … there is a white backlash which is sometimes couched in symbolic terms that imitate black symbols of solidarity: “calls for white power” and “white power check salutes.” The interaction of these attitudes seem to create situations with whites and with white authority.

As we reviewed the 2020 West Point Anti-Racism platform side-by-side with the efforts in 1971 and 1972, we were struck not only by how hamstrung the military has been in their quest to eradicate both intentional and systemic racism, but how that discrimination continues to permeate almost every aspect of military life – from the disparities which have continued to foster an unequal military justice system to how service members of color continue be singled out – if not because of their skin color – but due to their hair.

Retired Army Capt. Mary Tobin relayed the experience of one recent Black female cadet who:

wore her hair in braids that conformed to Army regulations, but she was instructed to take them out. The cadet even provided the officer with the regulation because “as Black women, we have to keep the regulation in our pockets,” she says. “We know we’re going to be confronted about our hair.” Nevertheless, she says, a “white leader demanded that she take her braids out inside of a port-a-potty. And besides the humiliation of having to go through that, this leader was wrong.”

Last month, Esper directed a review as to whether grooming standards in the military are racially biased. This is another parallel which illustrates how little things have changed in a half century: The 1972 Task Force also identified regulation of personal appearance – especially hair – as a major irritant depressing morale. Black soldiers who were prohibited from growing their hair in an afro-style saw such restrictions as an “undue limitation on their freedom of expression.” The Task Force actually recommended re-examining haircut standards with an eye toward improving morale and improving job performance through the removal of petty grievances. This begs the question of how the military can enact meaningful reform in its justice system if questions about hair still persist after five decades.

In addition to the review of grooming standards, Esper instructed the DoD to develop training requirements to educate the force on unconscious bias as well as a program of instruction “containing techniques and procedures which enable commanders to have relevant, candid, and effective discussions” on discrimination, prejudice, and bias. Additionally, he commissioned further data gathering including on harassment, discrimination, extremist group activity, and a cohort analysis study to understand the potential factors affecting racial and ethnic minority officer retention and promotion. He also barred the inclusion of photographs with promotion packages. While this is welcome, the 1972 Task Force addressed some of these very same issues.

While we applaud the efforts currently underway, the military need not reinvent the wheel or wait for further data before taking steps to address racial problems. As an example, the commandant of the United States Marine Corps banned public display of the Confederate flag in April of 2020, two months ahead of NASCARs decision to do the same and before the death of George Floyd, who was killed by a White police officer in Minneapolis on May 25. DoD effectively followed suit shortly thereafter even in the face of the virulent opposition to banning the flag and renaming bases honoring Confederate generals by President and Commander-in-Chief Donald Trump. Like the Task Force, even these current efforts have an uncanny historical parallel from 50 years ago, at West Point. 

These West Point Cadets have heeded the lessons of the past to propose solutions for a better future

We have explored several areas where our nation’s civilian and military policymakers continue to be stuck on the threshold of asking the necessary questions that should kick-start a process to combat entrenched systemic racism in the armed forces, even though a DoD-led Task Force convened under a Republican administration asked and answered many of the same questions nearly half a century ago. Still, we hold out hope for the future. Our hope comes from the West Point graduates who penned their policy brief inspired by a similar “Black Manifesto” written by Black cadets in September 1971 in response to Nixon’s proposal to build a Confederate monument at the Academy. General Ty Seidule, professor emeritus of history at West Point described the paper and the results it achieved:

The document listed thirteen grievances demanding “equality, respect, and understanding” from the Academy where they experienced “a long train of abuses and usurpations” and “blatant racism.” The manifesto not only resulted in the termination of a proposal to build a Confederate memorial, but also garnered support for a hop that invited Black women from surrounding civilian colleges, the dedication of Buffalo Soldier Field to the historically Black 9th and 10th Cavalry, the prohibition of Confederate flags in Cadet rooms, the cessation of the West Point band’s playing of Dixie, the organization of a charity concert—featuring Stevie Wonder and the Supremes—to raise $41,000 for sickle cell anemia research, the implementation of a Black History Week celebration, the revitalization of the Race Relations/Equal Opportunity Office, and the requirement for eight hours of mandatory race relations training to Cadets and sixteen hours for staff and faculty.

The Manifesto, signed by every Black cadet enrolled at the time, as well as 20 of the 21 Black officers in residence at West Point, succeeded in halting plans to build a monument to Confederate war dead to be placed on campus. The cadets’ advocacy on this final point did not invoke racism, discrimination, or slavery. Instead, they focused on patriotism and loyalty, as General Seidule recently recalled:

The African American cadets argued that West Pointers who fought for the Confederacy “abrogated their oath” to the Constitution. What if, as officers, the president called on them to quash a violent protest by black citizens?

If African American officers deserted their Army units to accept positions of leadership among “rebelling Blacks” in a hypothetical rebellion, would the U.S. Military Academy put up a monument to them? Or would they be punished as traitors? The Confederates, argued the cadets, committed treason, violating the Constitution by “levying war against the United States.” They deserved censure, not recognition.

The original 1971 “Black Manifesto” at West Point was modeled, in part, on a list of grievances presented by prisoners at Attica Prison, another New York institution,  who, months earlier, had protested their conditions. The West Point manifesto has been described as a list of “grievances” or “demands.” These descriptions are too facile. They are instead, a list of solutions. The cadets had argued that while “Black power” fist posters were banned for being “too political,” Confederate flags were allowed. This was 50 years before the Marine Corps formally banned displays of the Confederate flag, the 2020 call for an Anti-Racist West Point makes it clear that overt racism still exists today at the Academy, but in 1971 the Superintendent welcomed the feedback and took immediate and concrete action to lower the racial temperature on campus – without first insisting on the need for more data before acting.

Today’s young West Point alumni have called for:

  • an acknowledgement of endemic racism at West Point and a statement that Black lives matter;
  • divestment from Confederate memorialization (which includes a portrait of General Robert E. Lee astride a horse being led by a slave still prominently displayed in the library);
  • a robust anti-racist curriculum; and
  • transparency and publication of data on Equal Opportunity claims and determinations to the Office of Diversity, Inclusion, and Equal Opportunity and to the Academy leadership over the past twenty years as well as results of brigade command climate surveys from the past twenty years.

Again these should not be viewed as demands, but as solutions that are required to maintain order and discipline in the armed forces. The consequences for unit cohesion are paramount. One of the cadet signatories made this point convincingly:

I am a leader of 33 Soldiers, 87% of them people of color and 51% of them Black. In this role, it is essential that I am capable of having conversations with them about our Nation’s history of racism, especially given the ongoing movement. In the days following the killing of George Floyd and the resulting protests, I realized just how unprepared I was to have conversations about this with my Soldiers. I had received plenty of instruction on how to brief an operations order or occupy a patrol base, but West Point failed to train me on how to have important conversations about race within a diverse Army.

This example demonstrates that in a military that prides itself on being colorblind, acknowledging race and diversity is a cornerstone for establishing unit cohesion. As Air Force Gen. Rockwell testified in June, inclusion and diversity in the armed forces is “absolutely necessary to defend a diverse and inclusive nation.”

The display of Lee’s portrait, replete with his horse being handled by a slave continues the exact problem underscored by the Task Force – personnel of color are overrepresented in the “soft-core” military occupation specialties – including transportation – while White officers dominate the war-fighting occupations. Apparently not much has changed since General Lee’s time either (even though this portrait was unveiled in 1952).

The parallels from 1971 and 1972 to events occurring today are remarkable. While the present day GAO and military leaders have all agreed that accurate, complete, and “consistent data could enable DoD and the services to evaluate the causes of disparities, and better position them to address the causes and help ensure that the military justice system is fair and just,” the military need not wait to study the solutions presented 50 years ago, and those presented by its future leaders today.

Perhaps the answers do not depend entirely on first acquiring the data, but on listening to the qualified voices that have been shouting out the solutions for decades already, and acknowledging the work already done by the 1972 Task Force and how West Point confronted and resolved the same type of issues over Confederate symbols a half century earlier. Today’s young West Point graduates did so and we hope our Pentagon leaders will be as inspired by their understanding of history as we are.

Image: Soldiers from the United States Army, Air Force, Navy, Marines and Coast Guard march in parade during the National POW/MIA Recognition observance ceremony September 16, 2005 on the River Parade Field at the Pentagon in Arlington, Virginia. Photo by Chip Somodevilla/Getty Images

 

About the Author(s)

Barry K. Robinson

A practicing attorney, former Chief Counsel for Economic Affairs, U.S. Department of Commerce, former Senior Counsel for Corporate Affairs for the Recording Industry Association of America, Inc.

Edgar Chen

Edgar Chen previously served as Counsel to the Assistant Attorney General for the Criminal Division, as well as in the Office of Legislative Affairs and the Human Rights and Special Prosecutions Section, at the U.S. Department of Justice.