GMJR Cross-post: Rosenblatt on Racial Disparities

​“Why aren’t there any Black people?,” Pedro Bess asked his defense attorney.  Bess, who is Black, was on trial for allegations of sexual misconduct against white women.  The ten-member jury was all white. 

The trial judge denied Bess’s challenge, as did two appellate courts.  Although constitutional standards have evolved to provide for racial diversity of juries in criminal trials, Bess was shut out from those developments.  
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That is because Bess was in the Navy and was tried by court-martial.  Bess’s military commander enjoyed broad discretion to handpick the individual panel members (jurors).

As troubling as Bess’s case is, a quick fix seems unlikely since the Pentagon has spent the better part of the past decade resisting proposals spearheaded by Senator Kirsten Gillibrand to reform the military justice powers of commanders.  Still, this year’s efforts enjoy broader bipartisan support and appear likely to pass in some form.

Bess’s case is just the latest news item in a growing recognition that U.S. military justice is plagued by racial disparities, and that, for good or ill, commanders bear the consequences of calling the shots. 

A 2019 study from the Government Accountability Office (GAO) analyzed military justice actions from 2013 to 2017 and found that Black servicemembers were about twice as likely to face general or special court-martial as white servicemembers.

The problem extends more broadly to racial retaliation.  As the U.S. reckoned with the problem of systemic racial injustice last year, a Reuters special report found that the military’s process for reporting discrimination to command-appointed representatives was perceived to be a dead end.  Few complaints were substantiated, and minority servicemembers who complained of racial discrimination were often viewed as being in defiance of their units.

Surveys of Black, Hispanic, and Asian servicemembers show that significant numbers have experienced racial discrimination.  Many thought that reporting an incident would not change anything, and a higher percentage thought that reporting would negatively impact them.  

Military leaders acknowledge that they are just beginning to understand the scope of the crisis of racial disparities in military justice.  “Overall, results reveal much work is needed to improve the reporting process for those who experience racial/ethnic harassment and discrimination,” the Pentagon acknowledged in a press release last year.

Lt. Gen. Charles Pede, the Judge Advocate General for the Army, testified that the GAO report “raises difficult questions – questions that demand answers.  Sitting here today, we do not have those answers.” 

Pede directed a comprehensive assessment “to get to the left of the allegation, left of the disposition decision, to examine why the justice system is more likely to investigate certain soldiers…”

“Getting to the left” is a military expression for acting early in the timeline of an incident to address problems before they worsen.  It is how other injustices in military justice have been counteracted in recent years.

For example, at the height of the Afghanistan and Iraq conflicts over a decade ago, thousands of military members returned from combat and faced courts-martial or involuntary separations with stigmatizing discharges.  By just focusing on the misconduct, military commanders were often not aware that some of the misconduct was symptomatic of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI).  When this connection became more widely known, a change in the law required screening for combat-induced PTSD or TBI for many adverse actions.

In those cases, when commanders were required to find out about crucial factors that occurred before the misconduct, they were able to make more fully informed choices about wielding their military justice powers.  “Getting to the left” resulted in better decisions.  In this way, commanders could be required to investigate the presence of racial harassment or discrimination, especially before pursuing punishment of minority servicemembers for minor transgressions.  Even if commanders’ traditional military justice powers are soon curtailed, their recommendations will still carry weight and should be fully informed. 

Meanwhile, Pedro Bess is trying to “get to the left” of his own court-martial conviction: he recently filed a petition for a writ of certiorari at the U.S. Supreme Court.

Frank Rosenblatt

Guest