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NY Times: It Wasn’t a Crime to Carry Marijuana. Until the Police Found a Loophole.

By Benjamin Mueller,  August 2

It was the 1970s, and marijuana raids and mass arrests had been sweeping college campuses and suburban concert venues in New York. The crackdown outraged parents. There was talk of ruined reputations and “Gestapo” police tactics.

State legislators in 1977 devised what they took to be a simple fix: a bill that made carrying small supplies of marijuana a ticket-worthy violation, not a crime. To win enough votes from Republicans, the authors carved out an exception that said it was still a crime to carry marijuana “open to public view.”

The bill’s backers thought the addition was harmless enough, given that people did not usually take out their stash in front of the police anyway. The era of mass arrests for carrying around marijuana seemed to be over.

It wasn’t.

Annual arrests for marijuana possession, which dipped below 1,000 by the early 1990s, rocketed above 50,000 during some years in New York City under Mayors Rudolph W. Giuliani and Michael R. Bloomberg. Officers strayed so far from the bounds of the 1977 law that in 2011, the police commissioner, Raymond W. Kelly, had to issue an order reminding officers not to arrest people who had marijuana hidden in their pockets.

Arrests have remained so high that in recent months, Mayor Bill de Blasio and several district attorneys have tried again to rein in the police as Gov. Andrew M. Cuomo lays the groundwork for trying to legalize recreational marijuana next year. Mr. Cuomo on Thursday named a working group to draft the legislation.

But lost amid the scramble by policymakers in New York is the fact that state law, far from mandating marijuana arrests, has actually tried to steer officers away from them for four decades. With broken-windows policing on the ascent in the 1990s and officers asking hundreds of thousands of New Yorkers to empty their pockets during street stops, though, mass arrests on marijuana charges roared back. Black and Hispanic people have been the primary targets.

That history shows how carveouts in decriminalization plans, like one Mr. de Blasio included in the policy set to take effect next month, can haunt people for years. It also highlights the gap between policy and practice when it comes to policing.

Richard N. Gottfried, a state assemblyman from Manhattan who wrote the 1977 law, said it drove down arrests for two decades before the rise of proactive, aggressive street policing rendered the law moot in New York City. The “public view” exception became a springboard for arrests: police officers stopping and frisking people asked them to empty their pockets, and when marijuana fell out, arrested them because their hidden stash had suddenly become “open to public view.”

Even after Mr. Kelly’s 2011 order, defense lawyers say the arrests continued, though the overall number of marijuana arrests began falling. To stop arrests for carrying a small stash, Mr. de Blasio in 2014 forced a new policy on the Police Department saying that even openly possessing marijuana should not lead to an arrest.

“Not only did some court not strike down that kind of conduct, but when the police commissioner tells the people with badges and guns to do or not do something, they don’t obey the order,” Mr. Gottfried said. “I’ve always found that pretty scary. It leads you to question the effectiveness of civilian control of uniformed forces.”

In recent months, advocates and elected officials have protested the disproportionate number of black and Hispanic people arrested for marijuana possession.

In the late 1960s and the 1970s, though, newspapers and elected leaders were focusing on people in the suburbs, many of them white, who were getting arrested, according to research by Harry G. Levine, a Queens College professor.

Narcotics officers stormed dormitories on a Long Island university campus at 5 a.m. and handcuffed three dozen students and their friends, many on marijuana possession charges. One student told The New York Times the police tactics reminded him of the “Mission Impossible” television series and worried that “because of it, whole lives may be ruined.”

The next night, in late January 1968, three teenage girls were jailed in Westchester County after the police found them with marijuana on the outskirts of the private school they attended.

The drumbeat of arrests continued: 36 people, among them an off-duty New York City police officer, were arrested on marijuana charges during a five-hour Grateful Dead concert at the Nassau Coliseum on Long Island, a fraction of the nearly 270 people arrested at rock shows at the coliseum in the space of a few months in 1973.

One of the most influential groups lobbying for the 1977 law was a coalition of parent teacher associations, Mr. Gottfried said.

“What made the issue politically viable was suburban support,” he said.

Douglas Barclay, then a Republican state senator from Pulaski, said upstate support for the bill stemmed from a sense that the people there faced harsher punishments for marijuana convictions than New York City residents.

Still, Republicans didn’t come around until elected leaders killed a provision that would have made passing a marijuana cigarette a violation, not a crime, and carved out the “open to public view” exception. Smoking marijuana in public remained a crime.

Mr. Gottfried and Mr. Barclay both said the bill drew few complaints in the following decades as arrests dwindled.

“It did not open the floodgates to people buying and smoking marijuana all over the place,” Mr. Gottfried said, “but it almost entirely got law enforcement out of the business of dealing with possession of small amounts of marijuana.”

But then policing underwent a sea change and marijuana arrests skyrocketed, highlighting just how much of a hold broken-windows policing — the notion that the police need to stamp out small signs of street disorder to prevent serious crime — has had over law enforcement policy in recent years.

Police supervisors who once saw their jobs as mainly reacting to crime complaints started hammering officers in the 1980s and 1990s to deal with disorder on the streets — a return in some ways to the roots of modern police forces, according to research by David Thacher, a professor of public policy at the University of Michigan. Under the direction of police commissioners William J. Bratton and Mr. Kelly, low-level arrests became part of a police officer’s job.

And in New York, the 1977 law stood in the way. Defense lawyers say police officers in New York City exploited the “public view” loophole to arrest people — most of them black and Hispanic — who officers were stopping and frisking.

Anthony Posada, now a lawyer at the Legal Aid Society, said two plainclothes detectives found marijuana when they went through his pockets in Queens in 2003. The criminal complaint against him says Mr. Posada had a bag of marijuana “open to public view,” before describing it as being found in his “left front top jacket pocket.”

Judges rarely stepped in, partly because defendants often agreed to deals with prosecutors rather than fighting the evidence and going to trial.

Drug reform advocates worry Mr. de Blasio carved too big of an exception in city policy when he directed the police, starting Sept. 1, to start giving tickets instead of making arrests for people smoking in public. He made exceptions for certain people with criminal records — exactly the people, advocates said, who have been exposed to disproportionate police attention before.

Advocates also said the failure of the 1977 law shows that ending the strategy of broken-windows policing is a bigger priority than piecemeal policy changes.

“The police commissioner doesn’t totally control what’s going on here,” Mr. Levine said. “There’s a resistance to reducing marijuana arrests.”