President Joe Biden’s pick for a top Justice Department position says she has never advocated for decriminalizing all drugs—except for that time when she advocated for decriminalizing possession of all drugs. Confusion over her position on this issue is one reason several GOP senators unsuccessfully tried to delay her nomination from advancing last week.
In written responses to members of the Senate Judiciary Committee, which took a tie vote on sending her name to the floor on Thursday, associate attorney general nominee Vanita Gupta was repeatedly pressed on her drug policy views, particularly where she stands on broad decriminalization.
Members like John Cornyn (R-TX) have also questioned the nominee’s stock holdings in Avantor, a company that manufactures a chemical product that’s been linked to heroin production.
“I have never advocated for the decriminalization of all drugs, and I do not support the decriminalization of all drugs,” Gupta said. “In 2012, I coauthored an article that advocated for states to decriminalize and defelonize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.'”
Gupta—who has worked in the Justice Department during the Obama administration in addition to serving in top positions at the ACLU, NAACP and the Leadership Conference on Civil and Human Rights—seems to be downplaying her former position on decriminalization by making a distinction between supporting decriminalizing possession, which she did, and legalizing drugs.
But that’s a misleading distinction, as advocates generally define decriminalization as applying to possession and do not use the term to refer to allowing sales of currently illicit substances. In other words, by the most commonly accepted definition, Gupta did back decriminalizing all drugs.
Despite saying she never has, the nominee also said in written testimony that while “my position on these issues has evolved, because of my experience working at the Department of Justice and an experience with addiction in my own family, I have never communicated or believed that all drugs should be legal.”
This kind of backpedaling in response to questioning from GOP senators, which also occurred during her in-person confirmation hearing earlier this month, has frustrated reform advocates who’d hoped to have an ally in the Justice Department who could help move the agency to be less punitive in its drug enforcement approach.
“We are in the midst of an overdose crisis that requires audacious leadership and a commitment to evidence-based public health solutions,” Queen Adesuyi, policy manager of national affairs at the Drug Policy Alliance, told Marijuana Moment. “Fifty years of a failed drug war should be more than enough to convince policymakers and government leaders that we need to pave a new path on drug policy—one that is based in public health rather than addressed through a criminal justice lens.”
“A common-sense policy solution that can begin to do away with many of the harms associated with the drug war is eliminating criminal penalties for personal possession,” she said. “Now is not the time to shy away from bold drug policy reform.”
That said, Gupta has stated she continues to support decriminalizing cannabis and making other drug policy reforms.
“Substance use disorder is both a public health problem and a law enforcement problem. President Biden has supported decriminalization of marijuana and ending incarceration for drug use, and I support these policies,” she said in written responses to senators’ questions. “If confirmed as Associate Attorney General, I will enforce all federal laws, and I will work with the Attorney General and Deputy Attorney General to protect communities from the harmful effects of drugs.”
Typically for drug reform advocates, the messaging around substance issues is that they should be treated within the framework of public health, rather than “enforcement” or criminalization. That has historically been Gupta’s stated position as she’s worked for advocacy groups like the ACLU and Leadership Conference on Civil and Human Rights—but she’s since become quick to couple the approaches by saying drugs are both a health and law enforcement issue.
Gupta faced drug policy-related questions from Judiciary Committee Ranking Member Chuck Grassley (R-IA), Cornyn and Sens. Josh Hawley (R-MO) and Ted Cruz (R-TX).
All four of those senators and other GOP members of the Judiciary Committee sent a letter to panel Chairman Dick Durbin (D-IL) last week that called for a second confirmation hearing for Gupta, in part because they felt that the nominee made “misleading statements” about her position on decriminalization.
They wrote that Gupta “was no more forthcoming” in her written responses and in “some cases, she doubled down on her misleading statements from the hearing, and in other she refused to answer altogether.”
Speaking on the Senate floor on Wednesday, Cornyn made the case that Gupta’s stock holdings into Avantor represent a conflict of interest if she were to move forward as the assistant attorney general. The company produces a chemical that has been connected to the illicit manufacturing of heroin in Mexico, though it pulled the product from that market last year.
“Without this chemical, it’s virtually impossible to transform opium from a poppy seed into the more lethal drug of heroin,” Cornyn said. “The nominee for the third highest-ranking position at the Department of Justice has profited to the tune of millions of dollars from Avantor stock.”
“If confirmed, she would oversee the Civil Division, which will make major decisions about who will be investigated, who will be charged and who will face punishment,” he added. “Some of those potential targets include opioid companies, drug manufacturers, or perhaps even companies that are diverting precursor chemicals to the cartels.”
Because the vote on her confirmation was split, Senate Majority Leader Chuck Schumer (D-NY) will have to schedule a “discharge” vote in order to bring her nomination to the floor.
While advocates might be frustrated over Gupta’s comments on drug decriminalization, there has been some enthusiasm over her would-be boss’s recent remarks during his own confirmation hearing. Attorney General Merrick Garland made clear during his oral and written testimony that he does not feel the Justice Department should use its resources to go after people acting in compliance with state marijuana laws.