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Biden Pick For Top Justice Department Role Backpedals On Decriminalizing Drugs

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Drug policy advocates were encouraged when President Joe Biden nominated a civil rights activist with a history of supporting policies like marijuana legalization and broad decriminalization of other substances to a top Justice Department role. But they were sorely disappointed this week when she backpedaled on the issue—saying she’s “not too proud to admit” the policy shift—when questioned by GOP senators at her confirmation hearing.

Vanita 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—was selected by Biden to serve as assistant attorney general. The news was celebrated by advocates who felt that having someone with that background and who has promoted progressive drug policies could translate into administrative reform.

But when pressed on her stance on drug decriminalization by three Republican members of the Senate Judiciary Committee on Tuesday, Gupta said she no longer supports the policy. She did say in response to other Democratic senators, however, that she still believes racial disparities in marijuana enforcement are a national problem and there should be alternatives to incarceration for low-level drug offenders.

“Is it true that you advocate decriminalization of all drugs?” Sen. John Cornyn (R-TX) asked.

“No, senator, I do not,” she replied.

But that was far from the only time at the hearing that Gupta would be asked about her former support for the reform. Cornyn followed up to clarify, based on a questionnaire she submitted to the committee, what her position is today on decriminalization.

“Senator, I have advocated—as I believe President Biden has—for decriminalization of marijuana possession,” she said. “I believe that substance use disorder is both an enforcement problem and a public health problem, but I do not support decriminalization 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 aligned herself with advocacy groups like the ACLU and Leadership Conference—but during the hearing, she was quick to couple the approaches.

“Given her robust civil rights record, it is very disappointing to hear Vanita Gupta changed her mind from supporting drug decriminalization,” Maritza Perez, director of national affairs at the Drug Policy Alliance, told Marijuana Moment. “This is a civil rights issue.”

“We know people of color and other marginalized individuals bear the brunt of drug enforcement. We know that the war on drugs has failed by every measure. We know that jails, prisons, and the criminal justice system exacerbate harm in communities of color. We also know what works: investment in harm reduction tools and services,” she said. “As a leader in the Department of Justice and in the civil rights community, Vanita will have an opportunity to influence this country’s course on drug policy.”

“We encourage her to reach out to directly impacted individuals and advocates to discuss why drug policy must be grounded in harm reduction and public health,” Perez added. “What is clear from today’s hearing is that it is our job as advocates to change her mind back to supporting all drug decriminalization.”

Sen. Tom Cotton (R-AR) reminded the nominee of a 2012 op-ed that she wrote for The Huffington Post, advocating for the decriminalization of simple possession and argued that her response to Cornyn was misleading.

“Senator, I was not misleading. I was speaking for my position today after having been at the Justice Department, after having family members and experiences inform my thinking on this,” Gupta replied. “I do not support the decriminalization of all drugs. I have spoken about substance use issues and drug possession and substance use disorders as both a public health problem and an enforcement problem. I continue to believe that very much.”

And again, in response to Sen. Josh Hawley (R-MO), she said:

“That was a prior position. I am very clear that I do not support decriminalization of all drugs. There are many drugs that are having a devastating impact on and ravaging communities, and I believe, however, that substance use disorder is both a public health problem and an enforcement problem and that it is important to treat those things as such. But I don’t support decriminalization of drugs.”

Asked in a follow up question from Cornyn about the reason she’s shifted positions, she reiterated that it was “through the course of both working at the Justice Department, as well as experiences that my family has had related to these issues.”

“My family like probably every family, or too many families, in America has experienced the ravages of opioid addiction and the impact of that, and so that evolution has happened,” she said. “I’m not too proud to admit that evolution, but that is the explanation behind the statement.”

When it was hi turn to question the nominee, Sen. Cory Booker (D-NJ) didn’t bring up the broader drug decriminalization issue, but he did briefly mention racial disparities in marijuana arrests during his questioning in the confirmation hearing. The senator asked if those disparities serve as an example of systemic problem in the nation’s criminal justice system, and Gupta agreed that “that’s right.”

Later in the meeting, Sen. Amy Klobuchar (D-MN) talked about substance use disorders and the need to give people alternatives to incarceration.

“Senator, President Biden has also spoken about the importance of alternatives to incarceration for people with substance use disorders,” Gupta replied. “It is something that I have spent my life working on to ensure that there’s available community-based drug courts, drug treatment facilities and I think that would be a shared priority for the Justice Department.”

The nominee was not specifically asked during the hearing whether her position on marijuana legalization has changed to align with Biden’s opposition. She seemed to signal that, like Biden, she backs decriminalizing cannabis on its own, but she didn’t proactively offer up any stance on the broader reform, despite having strongly advocated for legalization, including a bill touted by advocates that cleared the House last year.

That legislation—the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—was sponsored by Vice President Kamala Harris during her time in the Senate. And coincidentally, while Harris dedicated significant energy toward advocating for legalization as a lawmaker and presidential candidate, she’s dialed back her rhetoric since joining the Biden administration, calling for decriminalization instead.

Bloomberg reported recently that an aide Harris’s team said her “positions are now the same as Biden’s” when it comes to marijuana, signaling that, like the president, she no longer supports legalization. Biden is in favor of medical cannabis reform, modest rescheduling, expunging prior marijuana convictions and letting states set their own policies—but he’s maintained firm opposition to adult-use legalization.

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.

Rhode Island Senate Leaders Unveil Marijuana Legalization Bill As Governor Prepares Competing Plan

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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