ALBANY – From his longtime residence on the eastern side of Lake Ontario, H. Douglas Barclay has encountered much in his decades as state and national Republican power broker, friend of the Bush family, former ambassador to El Salvador and founder of an influential law firm with offices scattered across New York and elsewhere.
Yet the 87-year-old former state senator still recalls vividly the summer day in 1977 when he helped drive through the GOP-led Senate what would be New York’s first stab at partially decriminalizing marijuana laws.
It was a historic and bumpy path that had close connections to the marijuana decriminalization bill that passed the State Legislature six weeks ago.
Barclay might have seemed an odd choice to lead a bid to relax marijuana laws; just four years earlier, he had teamed with then-Gov. Nelson Rockefeller to enact some of the nation’s toughest – critics say harshest – anti-drug laws.
But that was then. On June 28, 1977, Barclay was hunting for votes to relax New York’s marijuana laws. In his view, marijuana laws at that time had become unfairly enforced. The result? Young people from upstate were disproportionately more likely to go to jail for marijuana convictions than New York City residents.
“You can’t have a judicial system work where there were two standards," the former senator, who served until 1984, said in an interview last week.
The effort for Republicans took political might and cooperation with downstate Democrats running the Assembly who had different motivations than upstate Republicans. It would also take a surprise appearance on the floor by a newly one-legged senator to push the bill to passage.
What happened at the State Capitol 42 years ago is far from a footnote. Rather, it’s the key starting point for how New York – in a battle that would take nearly two generations to rise up again – would morph in its legal outlook toward marijuana in 2019.
In fact, according to state records, the 1977 debate was eerily similar to the rhetoric that came from both sides in this year’s wrangling over marijuana laws.
Critics in 1977 warned that a dire and near-immediate path was being carved to full-blown legalization if New York took a first step toward decriminalization. It did not happen. The next major change to that 1970s law would not come until June, when lawmakers passed legislation that more than doubled the amount of marijuana that would constitute a criminal charge of possession, while reducing the fine schedule for a conviction and creating a process that would make it possible for people with arrests under the old law to clear their records. Gov. Andrew M. Cuomo signed the bill into law last week.
Calls for those changes began to mount among Assembly Democrats in the early 2000s because of arrests that were the result of a controversial New York City police practice. But, for years, the idea died with GOP in control of the Senate, whose members rejected as bad policy any attempt to relax marijuana laws.
At the same time, polls began showing slipping opposition to tougher marijuana laws and more states moved to either legalize or decriminalize marijuana.
In thinking back to 1977, the bill’s Assembly sponsor, Manhattan Democrat Richard Gottfried said of his experiences with this year’s marijuana debates: “There was a lot of déjà vu.’’
With approval of the new marijuana measure, deals made long ago in Albany were finally undone and ideas first promoted in 1977 are now on the books, the lawmaker said. The new law, Gottfried said, “fixes things we had to bargain away, mainly with the Senate 42 years ago, to get that bill passed.’’
Everything old is new again
In 1977, critics warned of a slippery slope and a dangerous signal sent to young people that the state somehow was sanctioning the use of marijuana, a drug whose use does not come without some harmful effects.
In 2019, the same arguments.
Advocates 42 years ago talked of an unfairness in the marijuana laws, that young people were getting arrested for low levels of marijuana possession and having their futures disrupted thanks to a criminal record that could keep them from getting jobs or enrolling in colleges.
Same arguments in 2019.
In 1977, when lawmakers amended their marijuana bill to attract fence-sitters, drug advocacy groups were outraged and warned that people would still be subjected to arrests for marijuana. “Contrary to the apparent view of many, this bill does not ‘legalize’ or even ‘decriminalize’ the use of marijuana," wrote the New York Civil Liberties Union in a memo to lawmakers 42 years ago.
Same again this year.
When Cuomo and lawmakers in June abandoned efforts to legalize the cultivation, sales, use and taxation of marijuana, drug advocacy groups were outraged with the compromise.
“This is a failure of leadership," wrote the Drug Policy Alliance a couple of days before lawmakers in June settled on a decriminalization bill. “Decriminalization in 1977 did not stop arrests or the collateral consequences of the ‘marijuana arrest crusade’ and decriminalization in 2019 also falls short."
Watergate, arm-twisting and marijuana
In 1977, it was a bumpy journey on the decriminalization path. On May 16, 1977, Gottfried, had his marijuana bill rejected in the Assembly, a rarity for a town where bills making it to the floor are, certainly today, certain to pass.
Like 2019, the rhetoric was high that year.
Buried in the microfilm records of the legislation is a scathing, five-page letter to Gottfried from a judge in Rockland County, Robert Stolarik, who warned his bill went against the “natural law” and was being fueled by 1960s and 1970s attitudes “when the concepts of ‘civil rights’ and ‘freedom’ were so battered and tossed about that many of that generation really don’t know the true meaning."
Albany was, the judge wrote, engaging in misplaced priorities. “Let us divert our attention from the ‘potheads’ to the millions of decent, hardworking people who deserve better," he wrote.
In their own letter-writing campaigns, proponents – a church group, a union, the New York Public Interest Research Group and others – almost always included a mantra-like line that they were not condoning marijuana use. The 1977 law starts off noting that it’s “expressly not the intention of the Legislature to encourage or condone” marijuana use.
“But we know of no medical, legal or moral justification for sending to jail those who use it," the Student Association of the State University of New York wrote lawmakers.
Advocates pointed out there were 25,000 annual arrests for marijuana – mostly for possession of relatively small amounts and mostly by first-time offenders. Not targeted nearly as heavily: dealers. An added argument was that law enforcement and judicial dollars could be better spent elsewhere.
In an interview last week, Gottfried recalled one of the most active, pro-decriminalization groups in 1977 was the state’s Parent Teacher Association. Marijuana arrests by the mid-1970s were starting to hit the teenage sons and daughters of white, middle-class New Yorkers.
“They were in my office every day, working the halls," Gottfried recalled of the PTA. “Their motivation was that it was a lot of their kids who were getting arrested. It was very much a middle class and even suburban issue."
The PTA this year fought full-blown legalization, but said it has long supported decriminalization.
A revisited compromise
A month later, on June 28, 1977, Gottfried brought a new bill to the floor, telling his colleagues that it was “considerably watered down” from the defeated bill, according to a review of dozens of pages of transcripts, memos from supporters and detractors and other official documents from the time contained on microfiche at the State Capitol.
The final bill increased criminal penalties for possession of large amounts of marijuana aimed at dealers, while lowering to about 9/10th of an ounce the maximum amount one could possess and be considered a violation, not a misdemeanor with a criminal record. At the time, nine other states already had enacted more liberal marijuana laws.
One key provision in that new Gottfried bill: keeping “public view” of marijuana a crime. Twenty years later, that section would roar to life when New York City police – under a policy to confiscate illegal guns – tapped it to begin a “stop and frisk” campaign in which tens of thousands of people – mostly young and mostly minority – were arrested once the violation-level amount of marijuana on them came into “public view” when they emptied their pockets on a police order. Though since ended, that policy helped drive the 2019 bill to passage.
In 1977, the Assembly was still in the glow of the 1974 takeover by Democrats – largely due to the Watergate scandal that helped Democrats across the country. Also in 1974, Hugh Carey, who backed the marijuana efforts in 1977, became the first Democratic governor in New York since 1958.
“I don’t know where we are going with this legislation, but I have a pretty good idea. We will create a problem. Instead of an alcohol problem, we will compound it with drugs," Assemblyman James Hurley, an Orleans County Republican predicted of increased drug use and inadequate state treatment options.
One lawmaker, Assemblyman Charles Henderson, a Hornell Republican, worried his colleagues would vote on the topic “based on emotion rather than reason” and “more for the next election than the next generation."
After hours of debate, it passed.
Not long after, Gottfried received a gift from the state PTA: a pillow with the shape of a marijuana leaf hand-stitched on its front. He keeps it in his Albany office today.
Rounding up votes
In the Senate in 1977, the yes-vote gathering was heavily on Barclay, the Pulaski senator. In an interview last week, he said the key job was to have 32 yes votes – one more than needed in the then 60-member chamber. The extra vote, he said, was so no senator could be slapped by critics as being the “deciding” vote on such a controversial issue, a practice seen many times since.
With one more vote needed to hit 32, the Senate needed Abraham Bernstein, a liberal Democrat from the Bronx. He was downstate recuperating from an operation, three days earlier, in which one of his legs was amputated. Barclay and others convinced Bernstein his vote was crucial, and that he had to get to Albany to cast it. Barclay recalls they somehow got him a flight up to the Capitol.
“It turned into quite a thing," Barclay recalls seeing Bernstein pushed into the Senate chamber in a wheelchair.
Barclay got his extra two votes: 32-28. Carey signed the bill and New York's first stab at decriminalization of marijuana became law.
But more than four decades later, lingering questions from 1977 remain.
For starters, how did Barclay go from sponsoring the 1973 Rockefeller drug laws – tough, mandatory sentencing statutes that would be followed by some other states across the country – to sponsor of a bill to relax marijuana possession laws? Besides what he said was unfair treatment of upstate young people arrested for marijuana, he said he always thought parts of the Rockefeller laws “were too tough.’’ He described Albany as a pendulum: Sometimes it swings far right, and sometimes far left.
Gottfried reasoned the 1977 bill did its job as intended for about 20 years.
“It got law enforcement out of the business of dealing with small level possession … And after all the controversy and anguish leading up to pass the bill once it did become law none of my colleagues ever mentioned it again. Life went on and civilization did not collapse," he said.
When the Assembly on June 20 this year gave final passage to the first major marijuana law change to that 1977 statute, 44 members voted no. Among those no votes: Assemblyman William Barclay, a Pulaski Republican and the son of the sponsor of the 1977 marijuana law.