Report here, with commentary by Isaac Kennen below. Here is the Report's conclusion on military justice data:
"Conclusion on Military Justice Data
As early as 1974, the DAF identified racial disparity in military justice actions. AFJAG is aware of the racial disparity in Article 15 actions and courts-martial and informs leadership at all levels of this disparity. Also, AFJAG analyzed the military judicial process to address the potential of racial bias. In 2016, the DAF determined there was no evidence of selective prosecution in courts-martial based on a review of courts-martial records under the guidelines set in the Supreme Court case Batson v. Kentucky6 The DAF also found no disparity among conviction rates between black and white service members. Based on the available data, this Review found no instances of intentional racial bias or discrimination after an accused entered the court-martial process.
While the DAF has taken some action to address potential bias in the judicial process, it has not answered that next-level question of “why” racial disparity exists in military justice actions. AFJAG provides training to commanders highlighting that racial disparity exists; however, no training is provided on what causes the racial disparity and how to address the disparity. For more subjective cases such as AWOL or dereliction of duty, where the commander has discretion to impose disciplinary action and the severity of that disciplinary action, the DAF has not analyzed why racial disparity is present. This Review included interviews with members of the Disciplinary Actions Analysis Team (DAAT), which was established in 2017 to address racial disparity in military justice actions. These interviews revealed the DAAT, after meeting more than three years, was unable to ascertain the reason for such disparity. For more objective cases, such as marijuana drug use cases arising from random testing, this Review determined behavioral disparity accounts for at least some disparity indicated. However, the DAF must conduct further review to understand why there may be behavioral disparity among racial groups and how to address that behavioral disparity. Multiple studies show certain racial and age groups view marijuana use differently resulting in disparate use among those groups. (Ex 57) As of this Review, it appears the DAF has not examined these studies and considered how this behavioral disparity among its youngest enlisted members might be addressed."
Commentary: Air Force IG report fails to explore whether non-white Airmen and Guardians are more likely to face court-martial on shaky evidence than their white peers
On December 21, the Air Force Inspector General (SAF/IG) published its report on the findings of its 6-month-long inquiry into well-documented racial disparities in the Air Force’s administration of military justice. The release of the report has inspired media attention. For example, the Associated Press article runs under the headline, "Blacks are more likely investigated, disciplined." National Public Radio’s coverage was headlined: “Air Force Investigation Finds Black Members Face Racial Disparity In Service.”
What is missing from that coverage is how disappointingly short the SAF/IG inquiry has fallen from the goals it was given.
The story behind this SAF/IG inquiry begins with a report published by the Government Accountability Office (GAO) back in May. That GAO report documented systemic and long-running racial disparities in the rate at which non-white personnel in DoD were both tried by court-martial, and the rate at which they were given nonjudicial punishment by their commanders. The Air Force came out particularly poorly in that report.
The May GAO report made such a big splash that the House Armed Services Committee (HASC) convened a hearing to discuss the matter with the GAO and the head judge advocates for every service branch – that hearing did not go comfortably for those military officers. The GAO testified that in all the Services, including the Air Force, non-white service members were more likely be made to face trial by court-martial (see Figure 16 at page 95 of the GAO’s report) even though they were less likely to be convicted (see Figure 21 at page 106 of the GAO’s report).
The findings of an increased rate of prosecution coupled with an increased rate of acquittal naturally raises the question of whether the services – the Air Force included – are more likely to take non-white service members to trial on dubious evidence. Answering those sorts of questions is not something the GAO endeavored to do, however. The GAO’s objective was merely to – meticulously – document the disparity. The task of figuring out why those racial disparities exist was left to DoD and its service components.
Having been prompted by the GAO’s report (and, undoubtedly, by the HASC hearing), the Air Force launched this current SAF/IG inquiry back in June. The Secretary of the Air Force kicked that inquiry off with a press release that described the IG’s tasking as being to “assess Air Force-specific causal factors [for racial disparity in the administration of justice], like culture and policies, assimilate the analysis and conclusions of previous racial disparity studies by external organizations and make concrete recommendations.” In other words, the Secretary told SAF/IG to answer the question GAO left unanswered: “why?”
The SAF/IG report shows that the IG inquiry has done none of that. It largely just confirms what the GAO already proved to be true, and which nobody reasonably contested: racial disparities exist in the rate at which non-white personnel in the Air Force are court-martialed, and in the rate at which they are given nonjudicial punishment by their commanders. The report shows that SAF/IG has failed to make much, if any, headway in accomplishing the task it was given to assessing the cause of those disparities and to consider “the analysis and conclusions” regarding the problem reached by “external organizations.”
Given the GAO’s findings that non-white service members are more likely to be taken to trial even though the evidence in those cases is such that they are less likely to be convicted, it is particularly concerning that the SAF/IG report fails to take into account the recent work done by one external organization in particular: the DoD Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD). In October, DAC-IPAD released a report finding that 19 percent of the penetrative sexual assault cases that the Air Force sent to trial lacked enough evidence to even clear the very low probable cause standard (see table V2 on page 56 of the report).
One of the most important things the SAF/IG inquiry should be doing is exploring whether the Air Force’s documented tendency to send exceptionally weak sexual assault cases to trial is tied to its equally documented tendency to disproportionately pursue court-martial prosecutions against non-white personnel. The lack of any discussion of such an effort in the report SAF/IG just released is deeply concerning.
- Isaac Kennen
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