'Unacceptable': Pentagon Highlights Supervisors' Role in Racial Bias Across Services

JAG mock court martial.
Members of the Judge Advocate General Corps complete a mock court martial as part of a year-long judicial training exercise in 2018. (Army National Guard photo by Staff Sgt. Katherine Dowd.)

Bias from junior officers and supervisors is a key reason why minority troops face harsher treatment in the military criminal justice system, a new Pentagon internal review has found.

The review revealed that "significant racial disparities exist across the investigative and military justice systems" and that those outcomes begin early on -- long before legal troubles -- during minority troops' interactions with mid-level superiors.

The findings track with a Government Accountability Office report in 2019 that said Black and Hispanic troops were more likely than white counterparts to face criminal investigations and courts-martial. Deputy Defense Secretary Kathleen Hicks, who ordered the review, called the racial disparities found by the review unacceptable.

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"They degrade service members, directly impact recruitment and operational readiness, and undermine public trust in the military," Hicks wrote in a memo on the completed racial disparity review, which began a year ago.

The internal review team found that the greatest bias enters the judicial process through early discretionary decisions by a service member's direct supervisors as well as senior enlisted leaders and junior officers.

Those decisions shape how commanding officers process information and make recommendations, they said.

"Although the commanding officer makes the final decision, it is the junior leaders who put the paperwork on the senior leader's desk," according to the review.

Besides the 2019 GAO report, investigators said that reports going back decades found evidence of bias and disparity in punishments.

A Defense Equal Opportunity Management Institute study in 1992 found that Black service members were 2.2 times more likely to receive courts-martial convictions and 1.7 times more likely to receive nonjudicial punishment compared to their white counterparts.

Analyses done by both the Army and Navy in 2020 also found racial disparities existed in their branches.

However, the review ordered by Hicks offered new insights into how the well-documented biases affect the service members who are forced to live with them.

In discussions and focus groups that investigators conducted, many junior enlisted service members said they believed their supervisors operated without meaningful oversight by the chain of command.

The enlisted troops said they felt that "being 'liked' or 'disliked' by superiors improperly influences the outcome of disciplinary decisions."

The superiors -- often either more senior enlisted personnel or junior officers -- not only have the power to shape commanding officers' views, they also have "the ability to take independent actions that can, for better or worse, affect service members throughout their military careers and long after."

Furthermore, the investigators found that the superiors were far from properly trained, given the amount of influence that they wield. "This lack of training and education has profound negative impacts on the ability of service members at all levels to effectively execute their roles in these systems," the review found.

Racial disparities were more prevalent in less regulated command investigations, adverse administrative actions, and nonjudicial punishments, as opposed to proceedings like a court-martial.

"Where more due process is provided and service members have greater protections, racial disparities decrease," according to the review.

Review team investigators made 17 recommendations that included more protections for accused service members.

The services should adopt more modern policing practices like body cameras and recording suspect interviews, provide a right to a lawyer for all nonjudicial punishments and summary courts-martial, and add more due process when a service member is being administratively separated, they said.

Investigators also recommended that the branches step up their data collection efforts on cases and outcomes, as well as add more training and education for service members -- especially direct supervisors.

The Pentagon's chief spokesman, Brig. Gen. Pat Ryder, told reporters at a briefing Thursday that the Defense Department is taking a "deliberate approach" to carrying out the recommendations. Ryder said the department is starting with a 120-day assessment that will be led by Gil Cisneros, the undersecretary of defense for personnel and readiness.

Ryder stressed that the Pentagon remains "determined to eliminate racial disparities throughout our armed forces" and it "will continue to work to identify the causes of any racial, ethnic or gender disparities in the military justice system."

The report, however, stressed that if the department is serious about addressing racial disparities, it needs to work with Congress to make sure it has the needed funding.

If the Pentagon "intends to take on racial disparities and win, these initiatives must be prioritized and fully funded by the DoD, across the out-years; unfunded mandates will not suffice," according to the review.

-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.

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