Last week, the Deputy Secretary of Defense directed various Pentagon bureaucracies to conduct a perennial “thoughtful evaluation” of longstanding and well-documented racial disparities in U.S. military courts. If history is any guide, the results of this effort will be the same as before: the Pentagon will announce a major study, produce a report, claim once again it has no idea why black service members are prosecuted at twice the rate of their white peers, and direct further review. And so nothing changes.
Unfortunately, the Biden administration seems to be repeating this empty cycle by slow-rolling the Department of Defense’s (DOD’s) latest internal study, one that comprehensively evaluates racial disparities in investigations, adverse actions, and courts-martial of service members. At Deputy Secretary Kathleen Hicks’s direction, the Department’s “Internal Review Team on Racial Disparities in the Investigative and Military Justice Systems” (IRT) provided her an excellent, detailed laundry list of needed changes – ten months ago. (The non-profit organization I lead, the National Institute of Military Justice, contributed to the IRT’s report.)
Although the IRT’s study contains numerous specific, actionable recommendations that are within DOD’s authority to implement, the Deputy Secretary sat on all of them since last August. In the meantime, black service members continued to be treated unequally in disciplinary actions, investigations, and military prosecutions. And now, instead of finally implementing her own expert panel’s well-supported fixes, the Deputy Secretary has distributed the IRT’s recommendations for an additional six month “assessment” within the Pentagon.
This is classic bureaucratic inaction. Contemporary sociology considers racism “as not simply explicit attitudes but also implicit biases and processes that are constructed, sustained, and enacted at both micro- and macro-levels.” Currently, racial inequalities in military disciplinary actions and the discriminatory conduct that produces them are allowed by the straightforward procedural and structural defects the IRT has clearly identified. Refusing to implement the IRT’s corresponding solutions to the military’s broken systems is tantamount to accepting and supporting the unequal status quo.
The Deputy Secretary seemingly blamed her inaction on not knowing the “root causes” for the grossly disproportionate rates of courts-martial and negative administrative actions against black service members. First, why wait for action when there are clear contributing factors to racial disparities and equally clear corresponding remedial measures? And second, in so many words, the IRT has highlighted root causes: the military justice and related investigative and administrative disciplinary systems suffer defects in transparency, training and procedural safeguards at early stages in the exercise of impactful military disciplinary and investigative authority.
As noted by the IRT and others, wide swaths of unsupervised, unchecked, and unguided discretion allow for cognitive biases to have pernicious effect, particularly at early, low-level stages of disciplinary and investigative proceedings. The effect of such untrammeled discretion starts, for example, with a minor administrative adverse action such as a formal letter of counseling from a front line supervisor. Yet such actions often have “a significant cascading effect that can set the Service member on an irreversible path, either towards improvement and inclusion, or discipline and discharge.” Hence the IRT recommends not only greater training for those exercising such authority, but also greater tracking and reporting of these actions. It also rightly urges DOD to enact more procedural safeguards along the disciplinary continuum, such as the right to defense counsel at all non-judicial punishments (curtailing the Navy’s archaic policy, for example, of denying defense counsel when at sea despite modern communication technology) and recommends the same right at all summary courts-martial.
Since meaningful change is not coming anytime soon from DOD, Congress needs to act, as it did when it ordered greater transparency surrounding military justice racial disparities. The IRT’s report is a great place to start to draft legislative fixes for the next defense authorization bill. IRT recommendations, such as providing greater due process in administrative separation proceedings of service members not entitled to separation boards, are simple, cost the services almost nothing, and squarely confront key areas in which little checked discretion affects black services members unequally. Equally critical is the IRT recommendation to both bolster due process and implement access controls to the dangerous ability of the services to title and index service members in various federal law enforcement databases.
In addition to implementing these straightforward measures, more comprehensive training is needed to address systemic racism in the Pentagon in the long term. To that end, the IRT report recommends that DOD take immediate steps to:
Develop cultural core competencies to anchor training and education for officers, enlisted, and civilian personnel across their career life cycles and at all levels in the Department…Train and educate leaders at all levels to enhance their proficiency in talent management, improve their understanding of human behavior, and increase their acumen in interpersonal communications.
As the report concludes, “there is no more consequential time than today to address issues of racial disparity in the armed forces” due to crises at home and abroad. And that requires ensuring all those willing to sacrifice their lives in military service are treated fairly and equally based on their courage and conduct – not by the color of their skin.