Military Justice: Increased Oversight, Data Collection, and Analysis Could Aid Assessment of Racial Disparities
Fast Facts
The Army, Navy, and Air Force were required to report to Congress on racial disparities in the military justice system.
But the military departments don't collect and centrally maintain data for some parts of the military justice process—such as some investigations that are subject to commander discretion. They also differ in how they collect, analyze, and present data on racial and ethnic disparities, which makes it difficult to compare data across DOD.
As a result, DOD doesn't have a clear picture of what the disparities are, where they're occurring, and their extent.
We made 6 recommendations to help DOD better understand this issue.
Highlights
What GAO Found
The Departments of the Army, Navy and Air Force varied in the extent to which they included 18 statutorily required elements in their reports on racial and ethnic disparities in their military justice and discipline processes and personnel policies. These elements related to items such as investigations, court-martial panel selection, and sentencing, as well as data on accession, retention, and promotion rates. Each military department at least partially included 14 of the 18 elements but did not include others due to data limitations or because they were deemed less relevant in the military context according to officials (see figure).
Inclusion of Elements in Military Department Racial Disparity Reports as Required by the National Defense Authorization Act for Fiscal Year 2022
Several issues limited the usefulness of the military departments' reports—and may limit the usefulness of future reports—in assessing racial and ethnic disparities in the military justice system. Specifically:
- The departments do not centrally collect and maintain data for some segments of the military justice process such as commander-directed investigations, which are subject to commander discretion and could result in serious disciplinary action. Without a standardized process to collect and maintain such data, the Department of Defense (DOD) will lack visibility over areas that may contribute to disparities.
- The departments differ in how they capture, analyze, and present data on racial and ethnic disparities, which precludes a comparison of results. Without DOD-level oversight to coordinate these varying efforts, the department may lack the visibility needed to achieve the cultural change required to address such complex issues.
In reviewing selected studies on civilian criminal justice systems, GAO identified assessments of disparities in jury selection and sentencing that are not currently included in the military's reports on racial disparities in the military justice system. By comprehensively assessing the military justice and discipline process to identify all areas where racial and ethnic disparities may exist, DOD could maximize its ability to identify and address the root causes of disparities and reenforce the department's commitment to a fair and equitable justice system.
Why GAO Did This Study
The Military Justice Review Group reported in 2015 that the Uniform Code of Military Justice embodies a single overarching principle: military law can foster a highly disciplined force if it is fair and just.
The National Defense Authorization Act for Fiscal Year 2022 includes a provision for GAO to compare the military departments' reports to Congress on racial and ethnic disparity to reports assessing racial and ethnic disparity in civilian criminal justice systems in the U.S.
This report assesses the extent to which the military departments' reports (1) include required elements as defined in the statute; (2) enable a DOD-wide assessment of racial and ethnic disparities in the military justice system; and (3) are comparable to studies assessing racial and ethnic disparity in the U.S. civilian criminal justice system. GAO assessed the military departments' reports against the required elements; reviewed 27 selected studies published since 2018 on disparities in civilian justice systems; reviewed DOD and military department guidance and reports; and interviewed cognizant military department officials.
Recommendations
GAO is making six recommendations, including that DOD improve data collection and analysis, designate an office to oversee related efforts, and comprehensively assess the military justice process to identify all areas of possible disparity, among other things. DOD generally concurred with the recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of the Army | The Secretary of the Army should develop and implement a process to centrally collect and maintain accessible data—including race and ethnicity data—on administrative sanctions, all investigations including commander-directed investigations, appeals, and service members selected to serve on court-martial panels, to facilitate centralized visibility over, and, as necessary, the assessment and reporting of these data. (Recommendation 1) |
DOD and the Army concurred with this recommendation and stated that they will take steps to implement it. We will continue to monitor Army actions taken to implement this recommendation and will provide updated information as it is available.
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| Department of the Navy | The Secretary of the Navy should develop and implement a process to centrally collect and maintain accessible data—including race and ethnicity data—on administrative sanctions, all investigations including commander-directed investigations, appeals, and service members selected to serve on court-martial panels to facilitate centralized visibility over, and, as necessary, the assessment and reporting of these data. (Recommendation 2) |
DOD and the Navy concurred with this recommendation and stated that they will take steps to implement it. We will continue to monitor Navy actions taken to implement this recommendation and will provide updated information as it is available.
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| Department of the Air Force | The Secretary of the Air Force should develop and implement a process to centrally collect and maintain accessible data—including race and ethnicity data—on all investigations including commander-directed investigations, appeals, and service members selected to serve on court-martial panels to facilitate centralized visibility over, and, as necessary, the assessment and reporting of these data. (Recommendation 3) |
DOD and the Air Force partially concurred with this recommendation, stating that the Air Force agrees that it should collect and maintain demographic data on court-martial members, but expressed concerns that such data may present unknown risks to maintaining the integrity of convictions and may require further review, given that convening authorities are specifically prohibited from considering demographic data regarding potential courts-martial members. However, as discussed in our report, the military departments could collect data on the race and ethnicity of court-martial panel members in a way that is sufficiently separated from the trial process to mitigate concerns about convening authorities improperly considering demographic factors. Our report also notes that the Defense Advisory Committee studied this issue with regard to sexual assault trials, demonstrating that collecting and analyzing such data is feasible. The Air Force may be able to leverage these and similar efforts in order to identify risks and the means to avoid or mitigate them. Therefore, we continue to believe that our recommendation is valid and will enable the military departments to better respond to future requests for such information, as well as identify and address the source of existing disparities. We will continue to monitor Air Force actions taken to address this recommendation and will provide updated information as it is available.
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| Department of Defense | The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness designates a department-level office as the oversight entity responsible for coordinating the military departments' assessments of racial and ethnic disparities in military justice and discipline processes. (Recommendation 4) |
DOD concurred with this recommendation and stated that it will take steps to implement it. We will continue to monitor DOD actions taken to implement this recommendation and will provide updated information as it is available.
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| Department of Defense | The Secretary of Defense should ensure the department-level office designated to oversee coordination of the military departments' racial disparity assessments coordinates with the military departments to establish standard terminology and reporting categories, analyses, and reporting format and content to be used in future assessments of racial disparities in military justice and discipline processes. (Recommendation 5) |
DOD concurred with this recommendation and stated that it will take steps to implement it. We will continue to monitor DOD actions taken to implement this recommendation and will provide updated information as it is available.
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| Department of Defense | The Secretary of Defense should ensure that a department-level office is designated to coordinate with the military departments to comprehensively assess the military justice and discipline process to identify all areas where racial and ethnic disparities may exist, including in the selection of court-martial panels and sentencing, and the corresponding analyses to be conducted. (Recommendation 6) |
DOD partially concurred with this recommendation, stating that a department-level office will be designated to serve as a resource for the military departments in assessing racial and ethnic disparities but asserted that each military department is best positioned to conduct their own comprehensive analysis to identify all areas where disparities exist within their respective departments. We continue to believe that the recommendation is valid given the complex nature of such an assessment, as the military departments may lack the technical expertise required, as noted in our report. Further, the military departments; efforts to assess disparities to date have included inconsistent data, disparate analyses, and varied report content and scope, resulting in limited usefulness in providing DOD with visibility of disparities across the department. As such, we believe our recommendation remains valid as it will facilitate a comprehensive and consistent assessment and better enable DOD to identify and address racial and ethnic disparities across the military justice system. We will continue to monitory DOD actions taken to address this recommendation and will provide updated information as it is available.
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