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Clark Faces Challenger in Bronx District Attorney Primary Set for June

Challenger Tess Cohen, left, and Bronx DA Darcel Clark

As she runs for a third term as the county’s top prosecutor this year, Bronx District Attorney Darcel Clark is facing a Democratic primary challenge from Tess Cohen, a prosecutor-turned-criminal defense and civil rights attorney.

Cohen is challenging Clark from the left, saying that the current DA has been “overly carceral” and promising to pursue policies that will reduce mass incarceration, expand restorative justice programs, and address root causes of crime through treatment and intervention, while focusing on solving violent crimes like murders and shootings. For her part, Clark is promising a continuation of her eight years as a “smart on crime” DA, touting her success in restructuring the office and instituting reforms that, pre-pandemic, made the borough safer while reducing punitive prosecutions for crimes that do not threaten public safety.

Clark has been in office since 2016, after she became the first woman elected as the Bronx district attorney, and the first woman of color to serve as DA in the entire state. She then won reelection in 2019, running unopposed. But this might be the first year that she faces a primary battle. Petitioning for the June 27 primary kicked off on Tuesday, February 28, and the candidates must each collect at least 4,000 signatures to get on the ballot. The deadline for submitting petitions is in early April.

Elections this year are expected to be low-turnout affairs, with only races for Bronx, Queens, and Staten Island district attorney, some judicial posts, and the 51 seats in the New York City Council, which are taking place after redistricting.

The expected Democratic primary for Bronx District Attorney will be open to all registered Democrats in the borough.

Though overall crime has fallen in the Bronx, it continues to suffer from high rates of gun violence and murders. For instance, in 2022, there were 131 murders in the Bronx, down from 148 in 2021 but up from 84 in 2019, prior to the pandemic-era crime spike. The borough has had the highest poverty rate of any county in the state, in 2021 it was 24.4%, far higher than the state poverty rate of 13.9% and the national rate of 12.8%. As of December 2022, the Bronx also had the highest unemployment rate in the state, at 7.5% compared to 3.8% for the entire state and 3.5% for the nation.

The fate of the Rikers Island jail complex and the Vernon C. Bain Correctional Center, the floating jail known as “The Boat” and docked in the Bronx, also looms large over the race. The plan to replace Rikers with four borough-based jails hinges on reducing the jail population to less than 3,300, but the number of detainees has climbed since the pandemic and is currently over 5,800. The population reduction depends, in part, on the successful expansion of criminal justice reforms like alternatives to incarceration, speedy trial, and less use of bail for pretrial incarceration.

Bronx DA Darcel Clark
An associate justice for the State Supreme Court Appellate Division at the time, Clark faced few obstacles when she was first elected Bronx District Attorney. When she won the seat in 2015, she was nominated as the general election candidate in September that year by the Bronx Democratic Party, after former DA Robert Johnson won the primary election and stepped down to seek a State Supreme Court judgeship. The move prompted broad criticism from government watchdogs about Clark effectively being allowed to sidestep the electoral process thanks to her close affiliation with Democrats in charge of the county party, who helped orchestrate the entire process.

Clark ran as a reform candidate who wanted to make the criminal justice system fair, particularly for Black and brown New Yorkers who have been most impacted by it. The election took place in the wake of the death by suicide of Kalief Browder, the young Black man who spent three years on Rikers Island without trial after being accused of stealing a backpack. It later emerged that, as a judge, Clark had presided over several of Browder’s court dates but later said she did not recall them.

Browder’s case fueled the ongoing movement for criminal justice reform and Clark was among the candidates promising to change the punitive culture that led to Browder’s death. With Democrats overwhelmingly comprising the Bronx electorate, she sailed to victory in the general election against Republican candidate Robert Siano. She faced no opposition when running again in 2019, touting progress on reforming prosecutorial policies in her first term.

“For the last eight years, my whole vision has been to make the Bronx safer for everyone who has to live or work here or who has to even visit,” Clark said in a recent phone interview.

Clark began her career in 1986 as a prosecutor in the very office she now leads. She served as Supervising Assistant DA in the Narcotics Bureau and the Deputy Chief of the Criminal Court Bureau. In 1999, she went on to serve in the judiciary – first as a ​​a criminal court judge in Bronx and New York counties, then as a Supreme Court Justice for the Bronx and then as Associate Justice for the State Supreme Court Appellate Division, First Department.

“I really identify with my community because I am the community,” Clark said. “Everyday, for the last eight years and even before that, I've made sure that my life has been committed to public service.”  

As district attorney, Clark’s motto has been to “Pursue Justice with Integrity,” which she says she has put into action by creating a Conviction Integrity Bureau, a Public Integrity Bureau, and a Rikers Island Prosecution Bureau to tackle violence and corruption in the beleaguered jail complex. She also created a Community Justice Bureau to advance alternatives to incarceration programs.

“My approach has always been that we can have public safety and reform at the same time. They're not mutually exclusive,” she said. In her second term, she released a policy agenda entitled, “A Safer Bronx Through Fair Justice,” which outlines her “smart on crime” criminal justice philosophy.

“I believe that a prosecutor should make all decisions with an eye towards the least restrictive means of ensuring public safety,” she wrote in its introduction. “At every step in a prosecution—from charging, to bail, and sentencing—my office will seek the least restrictive option that is consistent with protecting the community and victims. At the same time, we will focus our resources on those crimes and individuals that most threaten the safety of the people of the Bronx.”

In the agenda, she committed to continuing stronger prosecutions of serious crimes, including gun violence and drug offenses, diverting defendants with substance use disorder and mental health issues out of the criminal justice system, and declining to prosecute certain low-level offenses. She also pledged “fairness” in charging, plea bargaining, and disposition of cases, and investments in reentry services for those leaving the justice system.

Criminal justice reformers have questioned Clark's commitment to these efforts given her failure to prosecute misconduct by correction department personnel on Rikers Island, her past opposition to supervised injection sites to combat drug misuse, and her expressed doubts about the criminal justice reforms passed by the state.

Clark, however, emphasized that she has been a reformer since she took office, changing bail policies before Democrats at the state level passed a series of criminal justice reforms in 2019, including eliminating cash bail for most low-level offenses. “My policy has always been, if we’re not seeking jail for somebody, we don't ask for bail,” she said.

In 2021, Clark also launched the Bronx Osborne Gun Accountability and Prevention program, a 12-month diversion program for first-time gun possession offenders that ends with them avoiding a felony conviction in lieu of a misdemeanor. She said nine men graduated out of the program in January; 42 people were enrolled in the program in 2022.

“My job is not just prosecution. We can't prosecute our way out of the work that we do…This job is about prevention,” she added, pointing to the diversion programs that she has overseen for those with mental illness and those suffering from substance use disorders.

At the same time, Clark is broadly supportive of efforts to toughen bail reform, as Governor Kathy Hochul and Mayor Eric Adams have controversially pushed. “You always have to look back at what you did to make sure that it's working the way that you intended,” she said. Clark didn’t specifically endorse Hochul’s proposal – which would remove the “least restrictive standard” for setting bail in the many cases where it is an option for judges, a list that has grown under Hochul – but agreed that the law could be improved without saying exactly how. If Hochul’s proposal were to be approved, it would cut against Clark’s own professed philosophy in her policy agenda to focus on “the least restrictive means of ensuring public safety.”

Clark heads into the reelection race with several advantages. As an incumbent, she has name recognition, a fundraising lead with over $97,000 in cash on hand, and support from the party establishment.

The racial dynamics of the race also cannot be ignored. Clark is a Black woman running for reelection in a county that, as of the latest Census data, is 27.7% Black, 56.4% Hispanic or Latino, and just 8.6% white, against a white woman. The Bronx has not had a white borough-wide elected official since 1987.

“I think my community knows that I'm one of them,” said Clark, who grew up in Soundview and attended Boston College and Howard University Law School. “This is a democratic process and a democratic country. I welcome her. You think you can build a better mousetrap? Come on and do it. But I know this work. I live this work.”

Challenger Tess Cohen
Those factors weren’t lost on Clark’s opponent either. “Certainly the fact that I would be running to represent people who are dealing with systemic, implicit or explicit racism that I have never and will never experience weighed heavily on me as I was making a decision,” Cohen said in a phone interview. “But in the end, what I see is an opportunity to make things significantly better for communities of color in the Bronx, and that outweighs my other concerns.”

Cohen has been a criminal defense and civil rights attorney for the last two years with the firm ZMO Law PLLC. Her work includes cases in the state and federal criminal courts, and she is currently representing several allegedly wrongfully convicted individuals who are trying to overturn their convictions.

Prior to private practice, Cohen worked for over eight years in New York City’s Office of the Special Narcotics Prosecutor. She served as chief of the Prescription Drug Investigation Unit, handling major investigations and prosecutions of doctors for prescription drug crimes.

Cohen also served on the New York City Bar Association’s Mass Incarceration Task Force, and said she was the primary drafter of the task force’s major policy report released in 2021 dubbed, “A Pathway Out of Mass Incarceration and Towards a New Criminal Justice System.”

The report’s recommendations included decriminalizing low-level offenses, expanding community-based diversion programs, increasing alternatives to incarceration, reforming sentencing guidelines, reforming prisons, focusing on reintegration after parole and post-release supervision, and making it easier for people to seal convictions, among other measures.

Cohen’s policy platform largely aligns with those recommendations and resembles what Clark said she has done as DA. Cohen has pledged many of the same reforms as Clark, arguing that the DA has failed to achieve them. They include addressing the root issues of crime, ending punitive prosecutions in favor of rehabilitative justice, tackling violent crime, supporting victims, investigating and addressing the crisis at Rikers Island, pushing policies that end mass incarceration, and more.

“I decided to run because I simply grew tired of seeing the Bronx DA’s office failing to do what the community needs,” Cohen said in a phone interview. “We're behind on everything. We’re behind on reform, we’re behind on holding people accountable, we’re behind on taking care of victims. And there's a long history of mismanagement that makes all of these problems quite a bit worse.”

Cohen said she is focused on “intervention over reflexive punishment” and presented herself as a more progressive alternative. Clark, she said, “talks the talk, but doesn't necessarily walk the walk” when it comes to progressive reforms and that she has been “overly carceral” compared to other district attorneys in the city.

“She made changes when she came into the office. I certainly wouldn't suggest otherwise,” Cohen said. “But her reforms are the reforms that people were starting to do 10-15 years ago and it's not where reforms are now and where we know we need to go.”

She specifically said that Clark’s office hasn’t sufficiently used diversion programs for those with mental illness and for minor gun crimes, both of which she said she would expand as DA.

Cohen also wants to restore trust in the Bronx DA’s office, which she believes has been eroded by the scandals involving Clark – including favoritism in promotions, accepting large donations from corrections officers that fall under her jurisdiction, bungling the prosecution of a Rikers Island physician’s assistant accused of multiple rapes, and retaliating against her own staffers who complained about working conditions, to name a few.

On one issue, Cohen is an outlier among progressives. In recent races, several progressive district attorney candidates have expressed support for abolishing the Office of the Special Narcotics Prosecutor, where Cohen worked. She defended the office’s work in carrying out complicated prosecutions of doctors that contributed to the opioid epidemic or defrauded the Medicaid system. And she said that if the office was eliminated, most of the cases it handles involving defendants with substance use disorders would end up in the federal system, leading to harsher prosecutions. “So I actually think that it would be a net detriment to people charged with crime at this point in time to abolish that office,” she said.

Assessing the Race
“I think [Cohen] has a considerable uphill climb,” said John DeSio, a Democratic communications consultant and longtime aide to former Bronx Borough President Ruben Diaz Jr. “She is running against a well-liked multi-term incumbent in a borough that is not super progressive on law and order issues where the establishment will be out in full force for the incumbent and where the racial makeup of the electorate does her no favors.”

As DeSio noted, the Bronx hasn’t been as receptive to progressives as other boroughs like Brooklyn, Manhattan, Queens where left-leaning candidates have made significant inroads in recent district attorney elections. Alvin Bragg won a crowded 2021 Manhattan District Attorney primary on a progressive platform and has been implementing it during his first year-plus on the job. In Brooklyn, DA Eric Gonzalez has been widely hailed for his efforts at reform, following in the footsteps of the late Ken Thomspon. In Queens, Tiffany Cabán, a former public defender and now a City Council member, came within a hair of winning the DA race in 2019 (DA Melnda Katz is running for reelection this year and facing a primary challenge from George Grasso, a retired judge and former high-ranking NYPD official). But progressives also haven’t made a concerted effort in the Bronx. It’s unclear if that will change with this year’s election and whether the left will get organized behind Cohen.

“It is worthwhile for the progressives to press their issues in the Bronx if only to see what their current standing is and where they have room for growth and where they have room for improvement,” DeSio said, “because you never know if this year’s district attorney primary is the first domino that leads to a progressive wave in the Bronx 20 years from now. They’ve never really pressed their issues in a serious way at this kind of stage.”

VOCAL-NY is among the advocacy groups that have pushed for greater DA accountability in Manhattan and Queens in recent elections. This year, according to Keli Young, VOCAL-NY’s civil rights campaign coordinator, advocates won’t be focused on endorsing individual candidates in district attorney races but rather on broader community engagement and education about the role of prosecutors in the criminal justice system. “As a prosecutor, we want you to reduce harm as much as possible. That's what we're looking for. Not just in this race, but for any prosecutor,” Young said in a phone interview.

Decarceration, as broad as the term is, continues to be the top priority, she said, particularly in the wake of the crisis at Rikers Island, which saw the most detainee deaths last year in over 25 years. “That is largely tied to how people are prosecuted and how bail is being set. And so we are really committed to driving down the population in our city’s jails and just making sure that this system is not causing further harm to New Yorkers,” Young said.

by Samar Khurshid, senior reporter, Gotham Gazette

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