Black Prosecutors
Dealing With Race in the Criminal Justice System

By Emily Kopp

When New York City police officers fired 41 shots and killed the unarmed West African immigrant Amadou Diallo in 1999, Kenneth Montgomery knew they would go free. "I knew justice would not be served," he said.

Montgomery, a 28-year-old prosecutor in Brooklyn, was in the Kings County criminal courthouse on the day the verdict was announced. As he finished his duties in the courtroom, he heard shouts coming from a nearby lounge. There he found colleagues from the district attorney's office standing around the television set. "They were cheering," he recalled. "Tears swelled up in my eyes. I didn't want to be near them."

All he wanted, he said, was for "white people to look at black men differently - we're not all criminals."

Montgomery, who is black, is considered a rising star in the district attorney's office in Brooklyn. Judges have praised him and introduced him to politicians. Colleagues admire him. He cites the black philosopher Cornell West in casual conversation. He stops secretaries in the elevator to ask about their health.

But he plans to leave the office someday.

Since he was a child, Montgomery has wanted to be a lawyer to help others in his community. But he finds that this job constantly challenges his values. "Here, when someone gets a conviction," he said, "it's a tradition to go out and drink to celebrate." Montgomery doesn't see reason to celebrate.

His career goal is a bit different: He wants to improve impoverished, crime-ridden black communities, such as Crown Heights and Brownsville, where he grew up and went to school. But he doubts whether he can do that in a profession that sees only wins and losses. After winning a trial against a 20-year-old gang member sentenced for robbery, he recalls, he had a lump in his throat because he realized that the young man's life was messed up. "He's not going to do great things," Montgomery said.

Prosecutors have enormous control over people who are arrested for crimes. They decide whether to press charges, determine what charges to pursue and request bail. While a majority of prosecutors are white, most defendants are people of color.

Race is an important factor in the criminal justice system. Of the nation's nearly 1.8 million prison inmates in 2000, 45 percent were black, although blacks made up just 14 percent of the total U.S. population. Nearly one in eight black men were incarcerated last year. That's 18 times the rate for white men, according to the U.S. Justice Department. Montgomery, who works in the gang unit, says he has tried only one white defendant in his career. Colleagues in other departments agree that a small percentage of their defendants are white.

The nation's 1,000 African-American prosecutors represent just 3.3 percent of all prosecutors, according to the National Black Prosecutors Association. Some of them, such as Montgomery, find themselves trying to serve both the government and their black communities, which have often been at odds.

As a teenager, Montgomery did not view the government - or white people - positively. The whites he knew were either teachers or police officers - law-and-order types who children tried to avoid. That sentiment extended to district attorneys, too. "A lot of black and Hispanic males have an innate distrust of white prosecutors," he said.

When he goes into similar neighborhoods now, he sometimes feels resentment or disgust from people on the street who see him as an arm of the government. One time, he rode with a black police officer to a crime scene in an unmarked police car. "All the black men we passed rolled their eyes," he said. "I used to do that."

Some say black prosecutors should expect such treatment from the black community. "If you take a job in an office that has shown no concern for people of color, then you have to be prepared to deal with whatever people say, rather than faulting folks for raising questions," said Bryan Stevenson, a black public defender who teaches at New York University School of Law.

In the office, Montgomery senses a different resentment from white prosecutors toward defendants, victims and witnesses of color. He has heard young white colleagues curse them or call them "crackheads." He doesn't say anything about it - he says his sarcastic attitude and bad temper could make things ugly. But their behavior bothers him.

"As I see it, that could be my aunt or my neighbor," Montgomery said of the witnesses. As for defendants, he said, "I can understand why a 16-year-old guy got to the point of selling drugs." His colleagues' words reinforce his first impression of white law-enforcement officials.

"This puts me in somewhat of an uncomfortable position," Montgomery said.

Black prosecutors are the mediators in this cold war. John Newton, 34, used to work as an assistant district attorney in the Bronx before becoming counsel to the Environmental Protection Agency in Washington, D.C. Bronx juries are more than 80 percent black and Latino. They acquit defendants in nearly half of the felony cases.

Newton remembers reading about Larry Davis, a black man charged with murdering four drug dealers in 1986. When police officers tried to arrest Davis, he shot at them and fled. Davis' lawyers said he acted in self-defense, Newton recalled. The jury acquitted him, although he later served time for illegally carrying a gun. As a Bronx native, Newton sometimes felt obliged to explain these acquittals to his white colleagues. "A lot of white prosecutors didn't understand that fear of the police," Newton said. But to the community, he said, the officers "were just another gang in the neighborhood." Despite the culture clashes, Newton said he might return to prosecution someday.

Kirby Clements, 35, a supervisor in the Kings County District Attorney's School Advocacy Bureau, which handles all school-related crimes, also finds himself between white colleagues and blacks involved in a case. Sometimes, he said, a white prosecutor will bombard a black witness with questions during a pre-trial meeting. The witness won't respond. In frustration, the white colleague asks Clements, who is black, to help. Clements sits with the witness and asks, "What's up?" The witness talks. "It's all in how you deal with someone," Clements explained.

Sometimes witnesses and victims ask Clements to step in on their behalf. Once, the black grandmother of a sex-crimes victim insisted on working with a black prosecutor instead of the white one to whom she was assigned. "The grandmother needed to feel comfortable," Clements said. "People have stereotypes about whites" in law enforcement.

Clements said those stereotypes stem from a belief that law-enforcement officials want to lock away black people and don't care about black victims of crime. While Clements doesn't believe that's true, he says the legacy of racism in this country - coupled with media reports that often describe suspects simply as "a black male" - fuel the fear.

When Montgomery talks about his childhood, he mentions the robberies he witnessed on his subway rides to school in Brownsville, Brooklyn. He remembers the heroin addicts who loitered outside his elementary school, P.S. 327. And he says drug dealers killed one of his friends in seventh grade. As he toys with a Notorious B.I.G. compact disc, he says race isn't the only barrier between most prosecutors and the people they work with during a trial. Class plays a role.

"Some black prosecutors don't know the neighborhood, the streets," he said, referring to his colleagues who grew up in middle-class or wealthy suburbs. "They don't know how to relate. Certain white prosecutors do." But Montgomery says that both the district attorney's office and Brooklyn's black community make assumptions based on race.

Supervisors "look at me as a decent guy, funny, from the neighborhood - he'll get us some convictions," Montgomery said. After only a few weeks on the job, he was told that he would win over Brooklyn juries because he was young, articulate and black.
And while some people in the black community give him dirty looks, most appreciate him, if only for his skin color. An informal survey of black defendants at the courthouse in Brooklyn one recent morning corroborated that notion. Those surveyed thought all prosecutors would treat them equally. Nonetheless, they preferred black prosecutors to white ones.

"We need more of them," said Natania Rowe, 21, of Jamaica, Queens, who came to the courthouse because she had been in a fight. "They can see where you're coming from."

"White prosecutors don't understand the ghetto, but blacks have been there," said her boyfriend, Everic Clayton, 27.

"Color matters, but I don't like thinking about it," Montgomery said. "It's something I can't control."

Nonetheless, race is a heavy weight in the office. It dictates style and, even, job placement. Colleagues call Montgomery "the angry black man."

"That's why he's in the gang bureau," where an aggressive attitude is most effective, said Assistant District Attorney Michael Choi, who is Korean.

Montgomery said he is passionate and intense, but not angry. Nonetheless, he doesn't mind the characterization. It keeps people on their toes.

District attorneys' offices use black prosecutors to promote an illusion of racial equality, said Kenneth Nunn, a professor at Levin College of Law at the University of Florida in Gainesville.

While working as a public defender in Washington, D.C., and in California during the 1980s, Nunn noticed that district attorneys' offices assigned black prosecutors to cases involving prominent black defendants, he said. When asked to give an example, Nunn mentions Christopher Darden, the black assistant district attorney who prosecuted O.J. Simpson in Los Angeles in 1995. Nunn says district attorneys should make such assignments to stymie notions of impropriety. "But they say race has nothing to do with it," he said.

Why then, he asked, don't black prosecutors try cases in mostly white neighborhoods? "They'll hire African-American guys in areas where they need them but not elsewhere," he said. "They're being used by the office to deflect racial policies."

Clements, the School Advisory Bureau supervisor, said he doesn't feel used. "Symbolism is important," he said. He offered this example: A black friend in Atlanta, his hometown, was charged with a traffic offense. When the friend walked into the courtroom, all he saw were white faces. "I never felt so black in my life," the friend told Clements.

Clements hopes blacks who see him in court "might think, 'At least they hire somebody,'" he said.

That was not the case for Darden. Many people saw O.J. Simpson as the latest black man to fall victim to the criminal justice system. "I was branded as an Uncle Tom, a traitor used by 'The Man,'" Darden wrote in his book, "In Contempt." In subsequent interviews, he said he received death threats from whites and blacks alike. He regretted taking the case.

But Durman Jackson, president of the National Black Prosecutors Association, said that people who say such things overlook the fact that most crime victims are people of color, too. "Most of the crimes are not multiracial," he said. "Justice for all includes victims as well. Black prosecutors can speak for the community and say, 'We've had enough, and something has to be done.' "

Montgomery agrees. "Do I ever feel funny with other young black males looking at me and I ask for 15 years?" he asked. "No, because the victim is a guy who got shot in the back, and he looks like me, too."

Ray Lohier, 35, a black federal prosecutor in Manhattan, chose his career because he wanted to change the system. He says black prosecutors can have an impact on their workplaces and the community. "If there's enough of us, we can raise the level of public confidence," he said. He acknowledged that there is a long way to go but said, "half a loaf of bread or a quarter of a loaf is better than nothing. If I have enough discretion, I might have an impact."

He knows black lawyers who would never want to be in his shoes; they don't trust law enforcement. He used to feel that way, too. "But in the big picture, would I rather have the attorneys, police officers and sheriffs, and no blacks?" he asks. "I think that's terrible and, if that's the case, I should step up."

As a law student at Emory University in Atlanta, Clements planned to become a defense attorney because he thought, "The Man is out to get us," he said. But he wouldn't change careers now. Prosecutors can use their powers to make decisions they believe are fair. "I can look at a case and say, 'It's crap, throw it away,' or 'You did it, and I'm going to pin you to the wall,' " Clements said. "I can mete out justice before the trial."

Nonetheless, few black law students plan to become prosecutors. Shana Fulton, a third-year student at Columbia Law School, says that only 3 out of 90 black students at her school are choosing that path. She is one of them. Other types of law are more popular because they offer better pay and aren't attached to any stigma. Fulton said some of her peers have asked her, "You want to put our people in jail?" She tells them, "When you're working within a community, there have to be attorneys from those communities."

But lone prosecutors can't change the system, Nunn said. "I don't think an individual prosecutor has the capability to change things," he said. Unless they are supervisors, "prosecutors don't have that kind of authority." He cites pressures working against a black prosecutor.

"There's pressure to be tough on crime," he said. "It's hard to maintain your integrity within the system if you're trying to act compassionately. A lot of prosecutors have political aspirations, too." They fear those political opportunities will slip through their hands if they stray from office policy, he said.

Montgomery plans to leave the Kings County District Attorney's Office someday to start his own legal practice. He wants to make a difference in his community, but he says he can't do it as a prosecutor. "Someone needs to be here," he said, "but it's only so effective."

Although he counts some white prosecutors among the most admirable and decent people he knows, he says the system is unfair. He laments the lack of people of color in top positions at the district attorney's office. There is only one district attorney of color-African-American Robert Johnson of the Bronx-in New York City.

Nunn equates becoming a prosecutor with joining a gang: you don't become a member to change it. Therefore, he said, blacks should refuse jobs as prosecutors to encourage social change. Only when the district attorneys' offices are "lily white," will they be forced to address these racial inequalities. They wouldn't be able to "use black prosecutors for window dressing," he said.

When he has his own private practice, Montgomery hopes to be a role model for young black men and help them stay out of the criminal justice system. He says the ultimate responsibility for that lies within the black community-not the government. "Once they get here, it's done," he said. "The object is to keep them from coming here."