Various studies in past decades pointed to elevated criminal activity (up to 61%) to explain disproportionate Black incarceration rates[1]. However, the American Bar Association responds that this means nearly 40% of convictions were not explained by the ‘propensity’ view. ABA suggests the court system itself lends to the disparity in processing, indigent defense funding, trying, and sentencing. If judges or prosecutors are personally biased, the outcome for African Americans is even worse.

[1] Tonry, Michael H. Thinking about Crime: Sense and Sensibility in American Penal Culture. Oxford University Press, 2006.