The Washington Post - The criminal justice reform movement can't ignore the military

Op-Ed

By Rep. Anthony Brown

Following the police killings of George Floyd, Breonna Taylor and too many more Black and brown Americans, there has been a nationwide call to address the disparities in our criminal justice system.

But these efforts cannot overlook the criminal justice system that is not on the front pages or television news -- the one in our military.

The current military justice system is not serving our country's higher values of justice, equity and fairness. It has put service members of color at a disadvantage and left them subject to a commander-controlled system they do not trust.

I served in the military for 30 years, and I love the institution as much as I love my country. But I have also seen its divisions and disparities firsthand. When I entered the military in 1984, I was troubled by the lack of diversity among leadership and the inequities in disciplinary action. I'm even more troubled by the lack of progress we've made since then.

In a survey last year of members of the Air Force and Space Force, 3 in 5 Black service members said they would not receive the same benefit of the doubt as their White peers if they faced disciplinary action. One-third believe the military justice system is actively biased against them. This trend carries across all branches of the U.S. military. The vast majority of service members who experience racial or ethnic harassment don't report it, often because they don't think any action will occur.

Those fears are corroborated by the facts. A 2017 report found that Black service members were more than twice as likely as White service members to have disciplinary action taken against them across all branches of the military. In 2019, the Government Accountability Office found that Black and Hispanic service members were more likely than White service members to be subjected to criminal investigations and to face general and special courts-martial. The Air Force inspector general reported in 2020 that Black airmen had been more likely than their White counterparts to face courts-martial every year for the previous 20 years.

Our military justice system mirrors the discrimination in the civilian criminal justice system, sometimes rising to a life-or-death-matter. A 2012 study showed that before its last use, decades ago, nearly two-thirds of service members sentenced to death were service members of color. These long-standing disparities and this unjust system demand our attention and action.

In short, the military justice system is unequal.

The best way forward is to advance comprehensive, bipartisan military justice reform with the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act, introduced last week. This effort will take serious, nonmilitary offenses out of the control of military commanders and put them in the purview of impartial, trained military prosecutors, building the justice system our service members deserve.

Before I served as an Army judge advocate general, I clerked for then-Chief Judge Eugene Sullivan at the U.S. Court of Appeals for the Armed Forces. My experience handling cases there taught me that the current system asks too much of commanders, who are typically not trained lawyers but must weigh evidentiary standards in complex criminal cases in which they often know both the victim and the accused. Commanders should be able to focus on battlefield operations and maintaining order and discipline.

The current system's results show that it is not providing equal treatment across race and ethnicity. As of fiscal 2018, more than 40 percent of service members were people of color, but the commanders making decisions about what would happen to them if they were accused of a crime tend to be White. The military criminal justice system today is not reducing or eliminating serious crime, including sexual assault, among the ranks. Though reports of sexual assault remain at record highs, the rates of prosecution and conviction continue to fall. It's clear, too often service members are not being held accountable for serious misconduct.

I love and respect the military. To take care of an institution you love, you have to commit to addressing the problems it faces. Comprehensive reform of the military justice system is the commitment we must make to begin to remove bias and to provide real, impartial justice to our service members who do so much for our country.

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