For those who get USNI's Proceedings, which should be all of you, you may be familiar with the below.
With permission of the author, I'm posting the response by C. Randolph Whipps, LCDR, USN in the Comments & Discussion section of the May issue responding to Sharif Calfee, CAPT USN's April article, Implicit Bias Affects Military Justice.
Do yourself a favor and read Calfee's article and then come back.
Enough from me, over to you Chris.
Setting aside the controversial science behind “implicit bias,” Captain Calfee’s entire argument rests on warrantless assertions adopted from the “Protect Our Defenders” (POD) report. As he puts it, “Given that it recruits its own high-quality force, the military should produce racially/ethnically balanced military justice statistics.” The flawed assumptions underpinning this statement merit destruction in detail.
First, disparate outcomes of military justice exist when analyzing variables other than race. For example—just as in the civilian criminal justice system—women are far less likely to be incarcerated than men, according to the federal Bureau of Justice Statistics. A 2013 Naval Postgraduate School thesis by Oleksiy Kryvonos found: “Females have lower chances of being dishonorably discharged than men.” Rather than alleging implicit bias against men, he recommended considering recruiting more women.
Second, disparate outcomes do not equate to unjust outcomes. A study in the November 2016 edition of Military Medicine used multivariable analysis of Marine Corps recruits, finding African American males had an odds ratio—“OR”— (what Captain Calfee referred to as a “disparity index”) of 2.12 for drug-related discharges as compared to whites. Hispanics and what the study classifies as “other” races had ORs of 0.99 and 0.81, respectively. Given the mandatory Marine Corps separation processing policy for drug abuse that limits commander discretion (and presumably, implicit bias), this is a particularly valuable data point. Would Captain Calfee argue that urinalysis laboratories have implicit bias?
Third, outcomes of courts-martial in fact hinge more on weight of evidence than the skin color of the defendant. While Captain Calfee writes, “African American sailors were significantly more likely to have military justice and disciplinary cases . . . adjudicated against them than their white counterparts,” he has selectively cited from the POD report with respect to the 2014–2015 statistics from the Navy specifically. The report actually says:
Notably, the disparity between black and white sailors nearly disappeared when examining how the military justice system treated the accused after the case has already been referred. In 2014, 68% of white sailors with a case referral were diverted from special or general court-martial, compared to 67% of black sailors. There was also little difference between the rates for 2015 (74% of white sailors and 75% of black sailors). The proportions of black and white sailors convicted at special or general court-martial were highly similar as well.
Finally, it is worth noting that the Manual for Courts Martial explicitly identifies race as an inappropriate factor that should not be considered when deciding to initiate or decline UCMJ action. Captain Calfee’s recommendations, which fixate on demographic statistics, seem to diverge from this guidance, likely at the expense of the 14 factors convening authorities should consider in all cases.
If Navy leaders would have taxpayer money and warfighter time spent on such tangential activities such as implicit bias training, it should be fully transparent with all the data that prompted such a decision—including a fulsome analysis of confounding factors. Then again, I have an explicit bias in favor of preparing for prompt and sustained combat operations at sea.
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