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Abstract

In this Article, I explore the complicated regulatory and federalism issues posed by creating safe consumption sites for drug users—an effort which would regulate drugs through use of a public health paradigm. This Article details the difficulties that localities pursuing such sites and other non-criminal-law responses have faced as a result of both federal and state interference. It contrasts those difficulties with the carte blanche local and state officials typically receive from federal regulators when creatively adopting new punitive policies to combat drugs. In so doing, this Article identifies systemic asymmetries of federalism that threaten drug policy reform. While traditional accounts of federalism suggest that our constitutional culture provides a fertile ground for experimentation and evidence-based decisionmaking, the realities of drug policy and the legacy of mass incarceration tell a different story: overlapping regulatory authority enables punitive creativity but disempowers or negates creative public-heath and harm-reduction programs, such as needle exchanges and safe consumption sites. This Article concludes by warning that, if we are going to turn our states and localities into true laboratories of democracy to develop solutions to the current opioid crisis, we will need to take political, cultural, and doctrinal steps to disrupt the asymmetries of our drug policy federalism.

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