“Prosecution Is About Locking Black People Up”

A former black prosecutor on why there aren’t more black prosecutors.

Attorney Kenneth Montgomery speaks on the steps of New York City Hall on July 5, 2011. He represents five individuals who were reported to have been victims of police brutality at a record release party for hip-hop artist Pete Rock and General Steele.

Photo by Jemal Countess/Getty Images

Earlier this week a new report from the Women Donors Network revealed that 95 percent of America’s elected prosecutors are white. For context on this stunning number, I spoke to Melba Pearson, the president of the National Black Prosecutors Association and an assistant state attorney in the Miami-Dade State Attorney’s Office. Pearson told me about her efforts to recruit black law students into her profession by convincing them that if they really want to make the criminal justice system less discriminatory against black communities, they should become prosecutors, not defense attorneys, because that’s where the real power in the system lies.

On Thursday I caught up with a defense lawyer named Kenneth Montgomery, who is black and grew up in Brownsville, Brooklyn before attending Fordham Law School. Montgomery, whom I met earlier this year while reporting a story about one of his clients, the rapper Bobby Shmurda, holds uncompromising views on the justice system’s mistreatment of black people, and he went into law with the intention of becoming a civil rights lawyer. But after getting his degree, Montgomery accepted a job offer from the Brooklyn District Attorney’s Office.

He ended up working there from 1997 until late 2001—not as an elected prosecutor of the kind tallied in the Women Donors Network, but as an assistant district attorney. He eventually quit to become a defense lawyer, and in the years since he has made a name for himself as an outspoken critic of law enforcement and prosecutorial practice.

I called Montgomery to ask him what it was like being a black prosecutor and why he decided to stop being one. And while his experience is only that of one man working in one jurisdiction, his views on what a black law school graduate can and should do to make the criminal justice system less coercive and damaging to minority communities are nevertheless revealing. Our conversation, which has been edited and condensed for clarity, is below.

When you were a law student, what were the different career paths you considered, and how did you decide to be a prosecutor?

I always wanted to be a defense attorney and civil rights attorney and run my own firm. What happened was that when I was going through the process in law school, I had interviewed at all the DA’s offices—Manhattan and Brooklyn were the ones that wanted to hire me. My mentor was a professor, James Cohen at Fordham Law School, who said that I had a natural skill as a trial attorney already, and that I should go somewhere where there was a rigid environment, because I could hone and sharpen my skills on the other side, to help me become a better defense attorney. And that’s why I chose the Brooklyn prosecutor’s office. So I knew what I was getting into. I knew I wasn’t a lifer, which many people are. It was a stepping stone for me to get experience.

So you felt like being in a prosecutor’s office would give you certain skills that you could use later as a defense attorney?

Yes, absolutely. That was the only reason I applied. 

Why did you think that being a defense attorney was the way to achieve the social justice goals that you had set for yourself? As opposed to making a career as a prosecutor, I mean.

I was not one of those people who believed that I could change the system by helping to uphold it as my career. The rule of law is flawed in many ways, and my attitude was that I wanted to challenge this rule of law, which was built on very horrible principles and actions.

What was it like being a prosecutor?

When I got there, I had skills that none of my colleagues had. I was the black kid, all of 24 years of age, who had grown up in Brooklyn—Brownsville—and I could assess a case better than some of the supervisors who were telling me what to do. And I saw the inner workings and the politics that go into prosecution and law enforcement, and how things actually get done. I saw the conversations that judges have with prosecutors; I saw the conversations that prosecutors have with cops; I saw the political things that go into the prosecution of crime. From a personal standpoint, it corroborated what I always knew about the system, which is that it’s innately flawed.

Were most of your colleagues white?

Absolutely. There were some black and Hispanic and Asian as well, but the majority was white.

Did you feel like you and the other black assistant DAs in your office had anything in common in terms of how you thought about the justice system and your role in it?

No. I found most of the black people were—and I hate to use the term—they were there as window dressing. They would be themselves in certain situations and then they would pretend to be more with the system in other situations. I wasn’t a typical prosecutor in that regard—I wasn’t drinking the juice. A lot of them get in there and drink the juice.

What do you mean?

Meaning they would forget that race has a tremendous impact on law enforcement. And they didn’t really see the correlative effects of racism and prosecution work. The majority of them were indifferent about it.

Does working in a prosecutor’s office shape a person’s worldview?

I think it can, if you’re not a strong-minded person, if you don’t come from a strong family and communal background, absolutely.

Did you feel like you had an opportunity, while you were working there, to make a difference in terms of combating injustice?

I thought that because of who I was, because of the street and academic smarts that I had, I was able to do some things that were more in line with justice. But with the overwhelming culture of law enforcement and prosecution work, it was like putting a Band-Aid on a gunshot wound. In the long run, I didn’t think it was worth it, so that’s why I left.

During the four years you spent there, were there cases that crossed your desk where you had the discretion to make charging decisions in a way that was consistent with your worldview?

I did whatever I wanted to do. I was not prosecuting bullshit—so drug cases, nonviolent cases—I would get rid of them, as they say. The cases that concerned violence were the ones I gravitated toward. So I ended up in the gang unit. I was fortunate because nothing ever blew up, where someone came and second-guessed me. But I took the discretion that I needed.

Can you give me an example?

I had a case where a cop was charging a family, two brothers and a father, with assaulting a police officer. The cops were in their neighborhood on an unrelated matter—and they lost their suspect and they decided to just knock on random doors to see if the suspect was in the backyard. And this family said “no” and they wouldn’t let these officers in. So the officers came back with the sergeant, pushed their way in, and beat the shit out of this family. And then claimed that they had injuries. And the injuries were bruises to their knuckles. So I chucked that case. I did stuff like that often.

So it sounds like you had a lot of leeway to do the job as you saw fit.

Yeah. But you know what? You weren’t going to do that your entire career, because that’s not what prosecution is about. Prosecution is about locking black people up. To have someone in the system who is second-guessing the system? It wasn’t going to last for too long.  

Did people take note of the fact that you were chucking those cases?

Some people did. Some of my colleagues did. Some of the clerks did. A couple of supervisors did. Some people did.

How was it received?

Because of who I was, it was fine—I never got into trouble. Because people thought I was a good attorney, so they didn’t second-guess what I did.

The other day I talked to the president of the National Black Prosecutors Association, and she said to me that a lot of young black law students who want to be involved in reforming the justice system or doing something else to help their communities believe that being a defense attorney is the only way to do that. And she said that she wants convince them that being a prosecutor is not just about locking people up, that it’s about doing justice.

Nah, that’s bullshit. Just look at the prison-industrial complex and look at how prosecution, particularly in larger cities, is actually done.

I don’t think she’s disputing that the criminal justice system as it exists now has a disproportionate impact on black communities. She’s saying that someone with your belief system and your ambitions can take the job of prosecutor and the power that comes with it, and use it to do good.

That sounds great, but I think it’s naïve. It’s shortsighted. You’re only doing what these police officers and policies dictate and allow you to do. And the policy is to focus on certain communities.

But prosecutors are so powerful. You were just saying you had the discretion to chuck a case when you felt that was the right thing to do.  

But I was one of a few who would do something like that. My point is that’s not what the system is built to do. It’s just not.

But if there were more people like you working as prosecutors—

There aren’t, though. Most people are of the law-and-order mindset. And they don’t look at the sociopolitical reasons for why certain communities are the way they are and how certain people get arrested. They just don’t do that.

That sounds like an argument for having a lot more black people in prosecutors’ offices.

I don’t know. Yeah, obviously, if you had more people from the neighborhood, people with understanding, working as prosecutors, that would, I guess, be more fair. But … that wasn’t for me. It’s very easy to lose yourself in the prosecutor’s office.

What do you mean?

You’re sitting down with precinct commanders. These precinct commanders, most of them, are not black people—you’re not gonna go in there and dictate and tell them, “You shouldn’t be locking 16-year-old kids up for bullshit and throwing them in the system, because you’re screwing up their lives.” They don’t want to hear that.

But do you think if there were more people like [Brooklyn DA] Ken Thompson, who are reform-minded, and who are in touch with the black community, and are aware of the racial imbalances in the system—if there were more people like that in power, do you think the system could become more fair toward black Americans?

I don’t know.  

Did you ever think about staying on as a prosecutor and trying to move up in the ranks until you had enough influence to make a difference from that inside position?  

People approached me with that. There were colleagues and people who thought that was my goal. But that was never my desire, no.

Why not? Why didn’t becoming an influential prosecutor strike you as being a viable path toward making the system more fair?

Because it just wasn’t my goal. That wasn’t where I was going to do my best work. My best work is with the people.