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The POD report highlights disci­pline disparities that align with the substantial existing body of research regarding inherent or implicit bias. Implicit bias “refers to the attitudes or stereotypes that affect our un­derstanding, actions and decisions in an unconscious manner. These bi­ases, which encompass both favor­able and unfavorable assessments, are activated involuntarily and with­out an individual’s awareness or intentional control.”4 Implicit bias can take the form of positive or negative stereotypes across many top­ics, but the most impactful are the negative biases that revolve around race, gender, age, sexual orien­tation, and disability. Of note, “a wealth of research convincingly demonstrates that even well-meaning persons with no desire to exhibit racial animus none­theless act under the influence of unconscious biases that systemically affect others on the basis of race.”5

The persistence of disparities documented in the POD report strongly suggests the existence of im­plicit racial/ethnic bias among decision-makers in the military justice system.6  While the statistical dis­cipline disparities in aggregation likely are not due to purposeful, conscious (explicit) bias, they pro­duce the same effect:  an outsized, quantifiable dif­ference in military justice actions that adversely af­fect racial/ethnic minorities at greater rates than their nonminority military counterparts.

STUDY FINDINGS

According to POD’s findings, for the U.S. Air Force, between 2006 and 2015, African American airmen were 71 percent more likely to experience military disciplinary involvement—court-martial or nonjudi­cial punishment (NJP)—than white airmen.7

For Marine Corps members, between 2006 and 2015, African American personnel were 32 percent more likely than their white counterparts to receive a guilty finding at court-martial or NJP.  Across the nine years, this disparity ranged from 23 percent to 48 percent more likely and was highest in the most serious forums: “In [an] average year, black Marines were 2.61 times [161 percent] more likely to receive a guilty finding at a general court-martial than white Marines. . . . Overall, the more serious the proceeding, the greater was the disparity between black and white Marines.”8

POD’s report indicates the Army also has experienced significant disparity within its military justice system that breaks along racial/ethnic lines.  Within the Army, African Americans were 61 percent more likely to face courts-martial compared with white soldiers. “This disparity existed every year from 2006 to 2015, with the disparity index ranging from 1.34 (34 percent more likely) to 1.82 (82 percent more likely).9

The Navy provided data only for 2014 and 2015; however, this data set contained a rich level of detail regarding military justice or disciplinary action. Af­rican American sailors “were more likely than white sailors to have their case referred for military jus­tice proceedings (1.40 times more likely [40 percent more]) and to have military justice or an alternative disposition action taken against them (1.37 times more likely [37 percent more]).”10

In summary, African American sailors were sig­nificantly more likely to have military justice and disciplinary cases referred for action and then adju­dicated against them than their white counterparts. For sailors of other races/ethnicities, “Hispanic sail­ors . . . were somewhat more likely than white sail­ors to be convicted at general or special court-mar­tial. . . . The same pattern was found among Asian service members.”11

ANALYSIS

Racial and ethnic implicit bias has been docu­mented in many areas of civilian society, including primary and secondary public schools. For exam­ple, the U.S. Department of Education, Office for Civil Rights, reported discipline statistics in which “black students are suspended and expelled at a rate three times greater than white students.”12 In March 2018, the Government Accountability Office pub­lished a similarly themed report, noting that, al­though representing just 16 percent of all public school students, African American “students repre­sented about 39 percent of students suspended from school.”13 Researchers exploring implicit bias at the collegiate level are finding a similar pattern of overrepresentation of racial and ethnic minorities in campus discipline cases.14 These disparities are the tell-tale signs of implicit bias in a system, and the POD report provides evidence of those signs in the military justice system.

As the POD explains, “the military is unique in that due to its nature as an employer . . . it acts as a natural though imperfect control for several fac­tors associated with criminal justice involvement. . . . Despite these equalizing factors, racial dispar­ities are present at every level of military disci­plinary and justice proceedings.”15 In other words, given that it recruits its own high-quality force, the military should produce racially/ethnically balanced military justice statistics. To the contrary, the system produces an overrepresentation disparity, indicative of implicit bias, similar to the civilian sector.

The military justice system’s prevailing notion has been that it is largely immune to implicit bias because of the highly structured organization of the military services, which contains numerous over­sight activities, monitoring systems, and checks and balances. The presumption is that the extensive training, coupled with laws and regulations govern­ing justice activities, serves as a forcing function to ensure equal justice. However, given the ample ev­idence to the contrary, it is time to reconsider this assumption.

CAPT Calfee’s full article, which includes recommendations to address the disparity in military justice, can be read at the following web link on the USNI Proceedings website: (https://www.usni.org/magazines/proceedings/2019/april/implicit-bias-affects-military-justice).

CAPTAIN CALFEE is a surface warfare officer and previous com­manding officer of the USS McCampbell (DDG-85). He was a U.S. Navy Fellow in the Federal Executive Fellowship program and is a student in the Princeton University, Woodrow Wilson School of Inter­national and Public Affairs. He is selected for major command afloat and will return to sea duty upon graduation.

1. See Rebecca Kheel, “Advocacy Group Accuses Military Justice System of Racial Bias,” TheHill.com, 7 June 2017; Safia Samee Ali, “Black Troops More Likely to Face Military Punishment than Whites, New Report Says,” NBCNews.com, 7 June 2017; Jeanette Steele, “Black Troops Are Being Prosecuted at Higher Rate than Whites,” San Diego Union Tribune, 7 June 2017; and Brock Vergakis, “Black Sailors More Likely than White Sailors to Be Referred to Court-Martial, Report Says,” The Virginian Pilot, 7 June 2017.
2. D. Christensen et al., “Racial Disparities in Military Justice: Findings of Substantial and Persistent Racial Disparities within the United States Military Justice System,” protectourdefenders.com, 5 May 2017.
3. Christensen et al., “Racial Disparities.”
4. “Understanding Implicit Bias,” Ohio State University Kirwan Institute for the Study of Race & Ethnicity (2018), http://kirwanistitute.osu.edu; and R. Banks, J. Eberhardt, et al., “Discrimination and Implicit Bias in a Racially Unequal Society,” 94 CALIF. L. REV 1169 (2006).
5. B. Trachtenberg, “How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate,” Legal Studies Research Paper Series, no. 2017-22 (2017), 107–55.
6. Christensen et al., “Racial Disparities.”
7. Christensen et al., 11.
8. Christensen et al., 13.
9. Christensen et al., 13.
10. Christensen et al., 10.
11. Christensen et al., 11.
12. Government Accountability Office, “K-12 Education: Discipline Dis­parities for Black Students, Boys, and Students with Disabilities,” March 2018.
13. Government Accountability Office, “K-12 Education: Discipline Dispari­ties for Black Students, Boys, and Students with Disabilities.”
14. Trachtenberg, “How University Title IX Enforcement and Other Disci­pline Processes (Probably) Discriminate.”
15. Christensen et al., “Racial Disparities,” 15.
16. Christensen et al., “Racial Disparities.”