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Don Lemon Tonight

Life Sentence for Pot Brownies?; The Right to Try; Should Marijuana Be Legalized?; Colorado Passes 'Right to Try' Law

Aired May 21, 2014 - 22:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


DON LEMON, CNN ANCHOR: This is CNN TONIGHT. I'm Don Lemon.

And you and I both know that millions of people in this country smoke pot. As I have said before, I'm not entirely unfamiliar with it myself.

So a lot were shocked when we heard about the Texas teenager who is facing a possible life sentence for allegedly baking and selling pot brownies. I'm going to bring in a team of experts to go head to head on this. Does the punishment fit the crime?

Plus, how far would you go to save your own life? Would you take a potentially risky drug, one that hasn't been approved by the FDA? That question may not be as easy to answer as you might think. As of tonight, the so-called right to try is now legal in Colorado, but is it help or is it false hope for desperately ill patients?

Plus, the stories you will be talking about tomorrow, surprising opinions about President Obama's handling today of what some are calling the biggest scandal facing his administration. We're going to get into all of that tonight.

And we want to though what you think as well. Tweet us #AskDon.

But before we get started tonight, I want to get something off my chest.

As I was getting ready for this show, I saw something that really ticked me off.

(BEGIN VIDEO CLIP)

BILL O'REILLY, HOST, "THE O'REILLY FACTOR": Rapper Macklemore mocks Jewish people. But where is the media outrageous? Nowhere. We will tell you why.

They, being the mainstream media, they defend these hip-hop rappers. You know what? I'm going to give Macklemore the benefit of the doubt here, I mean, because I don't know the guy.

(END VIDEO CLIP)

LEMON: A little coverage? No outrage on the Macklemore story, really? Roll the tape.

(BEGIN VIDEO CLIP)

LEMON: Macklemore is in hot water after he wore that costume on stage on Friday that some consider to be a caricature of a Jewish man.

RABBI SHMULEY BOTEACH, AUTHOR, "THE KOSHER SUTRA": It's the ultimate anti-Semitic picture of the Jew, the hook-nose Jew, the Jew who has this ethnic look, this very religious look. Here's my beard. Here we are, guys.

LEMON: Yes.

BOTEACH: And especially when you put it together with the song, that's why he did it. He was showing the "Jewish" costume for "Thrift Shop." And I forgive him. Just say you're sorry, stop the ridiculous defense.

(END VIDEO CLIP)

LEMON: It was a heated discussion last night on our show that lasted for quite some time.

And, by the way, Bill, I'm glad you covered the bullying story tonight. We got into that issue as well last night.

And to your producers who are watching, stay tuned, two stories upcoming that you won't want to miss. And one more thing, Bill. Saying that the president should have fired Eric Shinseki, let me surprise you. I do agree with you that the president could have seemed a lot tougher on the head of the troubled, scandal-plagued Veterans Administration and I understand why you and many others think the president should have Shinseki fired today.

But maybe the president did something that we all missed. Maybe he actually did fire Shinseki, Kathleen Sebelius-style, time-released. In a matter of months, like Sebelius, Shinseki will probably leave to spend more time with his family after the president and his team parachute in to fix the problems that he should have fixed a long time ago.

So, here's a question for you. Has President Obama perfected the art of the non-firing firing? Clean up your mess, and you can leave when the heat dies down?

Bill, we should know in a few months, when the general likely checks out.

But I want to begin with that 19-year-old who faces the possibility of a life sentence for allegedly baking and selling pot brownies. He is Jacob Lavoro. And he had agreed to join us tonight, but instead his father, Joe Lavoro, is here, along with his attorney, Jack Holmes.

Thanks both for joining us.

So, why didn't your son show up? Why didn't he come for the interview? JOE LAVORO, FATHER OF JACOB LAVORO: Frankly, he's exhausted. He's never done anything like this before, never had all that limelight on him and he was a nervous wreck. I told him to stay home.

JACK HOLMES, ATTORNEY FOR JACOB LAVORO: He had done five interviews today only, and he really was becoming exhausted, as you might understand, so he wasn't trying to avoid being asked any questions of any sort. He is -- he's just exhausted.

LEMON: OK.

Well, let's get into the issue then. Police say Jacob used hash oil to make about 1.5 pounds in pot brownies. In Texas, that is a felony up to life in prison for that amount. Did you have any idea that he could get in this much trouble, dad?

JOE LAVORO: I had no -- I had no idea at all.

First of all, I had no idea that there was such a thing in the first place. I mean, I was just made aware of the activity when he was arrested. So I'm quite surprised.

LEMON: All right. Joe and Jack Holmes, I want you to listen to what Jacob, what he said today in an interview. Here he is.

(BEGIN VIDEO CLIP)

JACOB LAVORO, DEFENDANT: Sure, when I heard that I was going to get life in jail, my face turned like completely white and I had to throw up.

(END VIDEO CLIP)

LEMON: So let me get this straight. The police weighed the flour, the eggs, the cocoa and the sugar together and that's how they came up with this charge, right, Jack?

HOLMES: That's how they came up with over 400 grams of controlled substance called THC, which is the active ingredient in marijuana.

But they also -- they also measured tupperware and other containers to come up with that number as well. They wanted to get the highest number possible, but they wanted to ensure they got over 400 grams so they could charge him with a first-degree felony, which carries a term in prison from five to 99 or life.

LEMON: OK. I want to show this to our viewers, so they can get an idea of exactly what -- so, this is about the amount here, about 1.5 pounds of brownies, which is -- you know, it doesn't appear to be that much.

It divided into nine bags of brownies. In addition, he also had six bags of cookies, I understand, about 16 ounces of marijuana and about $1,700 in cash found in his apartment. Why did he have the brownies and why were they packaged up like that and what did he intend to do with them? HOLMES: Well, first of all, it hasn't been proven who made the brownies or who had possession of the brownies. That's yet to be determined.

He's simply been charged with it. There were three other people in the apartment at the time. One was his girlfriend and the other two were other two friends of his and neither one of those friends were even arrested for this.

(CROSSTALK)

HOLMES: ... amazing.

LEMON: Is Jacob saying -- is he maintaining that the brownies were not his, that he didn't make it, that they belonged to someone else?

HOLMES: He's maintaining he wants a jury trial and a fair trial to determine all of that.

LEMON: OK. I understand that. That wasn't my question. Is he maintaining that it wasn't him?

HOLMES: That's all I can tell you this early, is that we're planning on going to trial. And that's going to be determined by a jury.

LEMON: OK.

HOLMES: Now, we're not denying that that was found in the apartment but who was in possession of them is still a question to be determined by a jury.

LEMON: Joe, did you know what your son was up to?

JOE LAVORO: No, no, no.

Listen, of course, I understand what young people do today and I understand that they may smoke marijuana.

I believe that the -- if I'm not mistaken, I heard some -- some -- someone say that X-amount of people smoke pot today or what have you. I'm not shocked that he smokes or smoked marijuana. I am shocked that he's facing five years to life for marijuana. That shocks the heck out of me. It doesn't seem right.

LEMON: OK.

(CROSSTALK)

LEMON: Go ahead. Finish your thought.

JOE LAVORO: I'm sorry. Excuse me. I'm just astounded by the penalty for this situation.

LEMON: Yes, and obviously this has been tough on you and he talked about that today in an interview today as well. Take a listen.

(BEGIN VIDEO CLIP)

JACOB LAVORO: It's pretty scary. I'm scared for my dad and scared for my whole family, because it's not just me going through this. It's my parents too.

(END VIDEO CLIP)

LEMON: So what has it been like for you and your family? Because, you know, we were talking about this today and we said many people all across the country in dorm rooms, apartments, and college, whatever, they make brownies. And, listen, half my friends would be in prison if we all got that kind of sentence. So, how has this been for your family?

JOE LAVORO: It's been horrible. It's just -- it's been a horror.

We're a close family. I mean, all families are close, but we're a very close family. We get together often. We laugh, we joke, we argue, but we're a very close family. And we feel each other's pain always.

Losing a son to something like this is just too hard to imagine. His mom is sick. She's sick over it. And I think the message, first of all, that I'd like to get out is that, do you see, young people, there's a possibility that you could go to jail for the rest of your life because there are some folks in this world who are archaic, draconic, I don't know?

Call it what you want, but they would put you in jail for the rest of your life for something like this. This is to be taken serious.

(CROSSTALK)

LEMON: I have to ask you, because we have heard that there is possibly going to be a plea deal offered. If he is offered a plea deal, will he take it?

JOE LAVORO: I can't answer that.

HOLMES: Oh, there's been no plea offer made at this time.

LEMON: If there is one, will he take it?

HOLMES: Could there be one made in the future? I'm sorry?

LEMON: If there is one, will he take it?

HOLMES: Well, it depends on what it is.

And it depends on -- we're still in the fact-gathering process right now. I just picked up the probable cause affidavit just about four or five hours ago, so I'm still gathering facts almost as we speak.

If there's a plea bargain made in the future, we will certainly consider it, depending on what it is, but, as of right now, we intend to go to trial, because there's a very clear Fourth Amendment violation in this case of how these officers got into the apartment.

They approached the apartment and announced that they were maintenance men from the apartment complex. They didn't announce themselves as police officers. They announced themselves and they lied to the people inside, saying they were maintenance officers.

LEMON: Right.

HOLMES: And then when the door was opened, then they rushed in and then claimed they smelled the odor of marijuana.

LEMON: And Jack?

HOLMES: Well, under the law, Texas -- under the law, you cannot enter a residence without a search warrant just based on the odor of marijuana.

LEMON: All right, Jack.

HOLMES: That's the law.

LEMON: All of that will come out as this proceeds and if it does go to trail.

HOLMES: All right.

LEMON: But we appreciate you joining us.

HOLMES: Thank you.

LEMON: And, Joe, listen, if Jacob wants to join us here any time on CNN, we will have him.

Thank you very much. Come back and tell us...

(CROSSTALK)

JOE LAVORO: Well, we appreciate that very much. Thank you so much for having us.

LEMON: All right.

We have got a lot to talk about here tonight. When we come right back, I want to bring in some experts who couldn't disagree more about America's marijuana obsession. Some say we have already lost this particular war on drugs. Others say we're putting our kids at risk. They will go head to head. That's next.

Also, the right to try. "Dallas Buyers Club" helped trigger a movement that is picking up steam all across this country. Should dying patients have the right to try unapproved drugs as a last resort? We want to know what you think about all this. You can us using #AskDon.

(COMMERCIAL BREAK)

LEMON: Welcome back, everyone.

We have been talking about the case of Jacob Lavoro, who faces a possible life sentence for pot brownies. In Colorado, that can be considered a business plan, though 36 miles away, across the Texas border, where Jacob lives, it could land you in prison for life.

Is there something wrong here?

Joining me now is Ben Cort. He's a board member of Smart Approaches to Marijuana. David Evans is a special adviser to the Drug Free America Foundation and a criminal defense attorney. Neill Franklin, retired state police major and executive director of Law Enforcement Against Prohibition, and back with us Jack Holmes, who is representing Jacob.

So, thank you, everyone, for joining us.

Neill, you know, we just heard about a teen who could theoretically face life in prison for pot brownies. Does this potential punishment fit the crime?

NEILL FRANKLIN, EXECUTIVE DIRECTOR, LAW ENFORCEMENT AGAINST PROHIBITION: Absolutely not.

This is absolutely ridiculous. At a time when the administration of this country is moving in a direction of eliminating minimum mandatory sentences, here we have this 19-year-old for baking pot brownies facing five years to life. Absolutely ridiculous.

It's time for these archaic policies to disappear, when we have Colorado and Washington State, where this -- where what he did wouldn't even be a crime. There is actually a legal process for him to go into business and bake the very same goods, and it wouldn't be a crime. This shouldn't even be a crime. That's the bigger picture.

LEMON: You know, just today in Colorado, the governor signed two marijuana edible safety bills into law. It's concerning packaging and the amount of THC in each product.

Doesn't that prove that there are dangers with consuming this drug, Neill?

FRANKLIN: Of course there are dangers.

But the question is, do we want to continue down this road of illegal marketplaces, you know, with the cartels and neighborhood crews and gangs and organized crime who are managing the marijuana business, where they use violence, coercion, kidnappings and who knows what else, guns, in managing this illegal business, multibillion-dollar business, or is it time to bring it above ground, under the law, put it into the hands of responsible business owners who value that license that's hanging on the wall, who are not going to employ children...

LEMON: OK. FRANKLIN: ... like drug dealers do? They hire kids to sell in school.

And they're only going to sell to adults.

LEMON: All right.

FRANKLIN: That's what we need

LEMON: I understand. I'm sure Dave is champing at the bit to get in here.

David Evans, you disagree. You say hash is more potent than these brownies, and they have the potential -- a potential to seriously harm. Is there some justification for such a harsh punishment?

DAVID EVANS, CRIMINAL DEFENSE ATTORNEY: Well, I'm certainly not in favor of putting anybody in prison for life.

I'm a criminal defense attorney this. This happens all the time where cops come in. They come in the more serious charges, knowing that it's going to be plea-bargained down to a lesser offense. In this case, the prosecutor is offering no jail time. So the prospect of him getting sentenced for five years or life is really not realistic at this point.

The prosecutor is not doing that. And, by the way, his activities would be illegal in Colorado. You can't sell marijuana if you're 19 years old in Colorado. And the THC content in marijuana brownies is limited to 10 milligrams per serving. Putting hash oil in brownies would exceed 10 milligrams of THC, so this would be against the law in Colorado also, and he would be prosecuted in Colorado.

LEMON: But you're saying -- listen, you said you don't think that they should -- this young man should go to prison for the rest of his life. But doesn't it trouble you, under the Texas penal code, that robbery, sexual assault, even murder gets the same amount of jail time?

EVANS: There is a potential for it, but the reality is, it doesn't take place.

This law was originally set up because of cocaine and heroin because drug sellers would mix cocaine and heroin with white powder or with flour, and there was no way of separating it out. It really wasn't intended for marijuana.

Quite frankly, the law should be changed.

LEMON: Yes.

EVANS: But using this extreme example, where this guy isn't facing any jail time anyway, to say that all marijuana laws should be thrown out is really not an accurate way of looking at it.

LEMON: What do you mean he's not facing any jail time anyway? EVANS: The prosecutor has said -- according to the CNN report, he is offering a plea bargain where he will not face any jail time.

LEMON: He just said that they had not been offered a deal. The attorney...

(CROSSTALK)

EVANS: I'm talking about what CNN reports. What you gave me before this interview, according to CNN, what the prosecutor told CNN is that they're offering him a plea bargain, and it will not include jail time. That's according to your own report.

LEMON: OK. OK. I have not seen that report.

(CROSSTALK)

EVANS: Well, I did. You should get it from your staff. That's where I got it from.

LEMON: No.

EVANS: But the thing that bothers me the most, we have a 19-year-old who is selling marijuana brownies, which would be illegal in Colorado.

LEMON: OK.

EVANS: Who is he selling it to?

LEMON: There is no report about that, so maybe -- yes, yes.

EVANS: I have it right here in front of me. I got it from your staff.

LEMON: So, I want you to listen to -- I want you to listen to what Jacob said about being in jail thus far.

(BEGIN VIDEO CLIP)

JACOB LAVORO: Yes, I was in there with -- the real criminals laughed at me when I told them everything. They -- they were like, oh, you shouldn't even be here. You're not the kind of kid to be locked up.

(END VIDEO CLIP)

LEMON: So, if he lived in Colorado and got a job at a dispensary -- of course, at 19, you said he can't do it -- as a entrepreneur, though, in a booming legal business, instead of a criminal, is it fair to have such starkly different laws state by state that is separated?

I want ask that to you, Ben -- separated by just 35 miles, by the way.

BEN CORT, SMART APPROACHES TO MARIJUANA: I think you really hit the nail on the head where my big concern is in this, certainly Jacob's case aside, is inside of the industry that we have built here in Colorado. Yes, it would have been a business plan certainly had he been 21 and had enough financial backing behind him and enough advertising support and whatnot.

But, you know, turning over control of the marketing and the manufacturing and the distribution of this substance to corporations, I'm not so sure that that's the best idea either. In fact, I'm really sure that it isn't, because I'm in a state that has cartoon characters aggressively selling concentrates using just about any means that they can to get kids to try and buy this.

And, yes, what's on the books says that they can't do it. But the reality is that we have christened an industry here in Colorado, and that's something that we really ought to pause long and hard and think about as a nation.

LEMON: All right, gentlemen, stand by, because marijuana is a topic that raises strong opinions on both sides.

You have been sending us your tweets to #AskDon and we're going to get some of them on next.

But, first, look who else was baking some green brownies.

(BEGIN VIDEO CLIP)

MARTHA STEWART, CEO, MARTHA STEWART LIVING: Can't you rap why we're doing this? Tell me what you're doing in rap.

UNIDENTIFIED MALE: Trying to bake some brownies, but we missing the most important part of the brownies.

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

LEMON: Hot in America, a divisive issue, but more and more people are changing their minds.

Forty years again, 18 percent were in favor of legalization. Well, it's 55 percent these days. Everyone has got an opinion about this, and now we're getting to yours.

I'm back now with my guests.

So, Jack, I want you to clear something up between us. Dave and I were talking about whether or not there was a plea deal. Apparently, there had been some reporting that there would be -- a plea deal would be offered, but you are a saying there is not one? Can you clear that up for us?

HOLMES: Yes.

There hasn't been a plea offer made at this point and -- but I probably will be getting one shortly. I was just actually appointed as the attorney of record today, so I'm really not entitled to any documents relating to the case, other than the public documents, until today.

I did pick up the probable cause affidavit in the case. And I will be getting what's called discovery, which is the police reports and any DVDs or photographs taken there of the apartment. I will be getting those probably by the end of the week.

LEMON: OK. All right.

HOLMES: So I can have some additional facts to work with.

LEMON: Thank you for clearing that up for us.

And, Neill, I want to go to you now, because I want to talk about how police officers pursue drug cases, because, on the national level, you say there are huge issues beyond this particular case in Texas. Explain that to me.

FRANKLIN: Well, on the national level, I think there's just a huge waste of law enforcement resources. In addition to the civil asset forfeiture policies that we have across this country, where we continue to take money and property from people and charge -- and never even charge many of them with a crime -- and, in my opinion, that's a violation of the Fifth Amendment of the Bill of Rights.

But -- but, regarding the law enforcement resources, I think that, if we end the patchwork that we're seeing around this nation state by state -- right now, we only have two states moving to legalization -- if we end that, if the federal government removes marijuana from the Schedule 1 category and puts it in a more appropriate category, then we can begin a process of -- of, I guess, making these laws more consistent across the nation.

LEMON: Across the country.

So -- but, Dave...

(CROSSTALK)

FRANKLIN: Across -- across the country.

(CROSSTALK)

LEMON: Polls show, Dave, that 55 percent of Americans say that marijuana should be legal. I mean, it seems like -- it seems like the country is already going to pot.

Dave?

(CROSSTALK)

EVANS: Well, what's behind this is that there's now a big marijuana industry, just like we had a big tobacco industry, and they're putting a lot of money into it. They're very good hiring at hiring public relations people, doing media work. But I think, in time, what's going to happen is, the public is going to realize, just like they did with tobacco, that they're being lied to about the addictive nature of marijuana, just like we were lied to about the addictive nature of tobacco, and they're going to see what's going on.

We're already getting very bad data out of Colorado about the number of kids addicted. Drug driving fatalities for marijuana have doubled recently in the state of Colorado. Kids stand a one-in-six chance of being addicted.

You have community forgotten in discussion about who Mr. Lavoro was selling this marijuana to. He's 19 years old. He was probably selling it to other young people. Marijuana is very damaging for young people.

(CROSSTALK)

HOLMES: Well, Don, if I could interject something...

LEMON: Quickly, go ahead.

HOLMES: ... right here, I'm in kind of a unique position.

I was a police officer for 10 years before I went to law school. And so I have learned from both sides. And I can tell you that I worked over 5,000 traffic accidents during my time as an officer, and not one had a THC causing an accident, not one.

Now, alcohol, you can't count them.

LEMON: Did you test for THC?

(CROSSTALK)

LEMON: Did you test for THC?

EVANS: That may be, because Texas has a tough law against marijuana.

But, in Colorado, the latest data coming out right now is that fatalities due to -- marijuana fatalities due to driving have doubled since they have loosened up the laws there.

LEMON: All right.

EVANS: We're seeing now in California more drug driving than drunk driving.

FRANKLIN: We're missing -- we're missing the main point here. We're missing the main point that this industry has always existed, exists today. Will exist in the future. The question is, who do we want managing it? Do we want criminals and the cartels and organized crime or do we want responsible citizens managing this business? It's not going to go away.

LEMON: Ben Cort, if you want to get in, you've got to -- you've got to be aggressive with this crowd. I'll give you the last word.

CORT; I'm sorry. I'm used to trying to be a bit more of a gentleman than that.

This industry has not always existed. We have not always have advertisement upon advertisement. We have not always had the mass acceptance and then the huge effort to gain more acceptance so that you can get more users and users who are already at it to use it more frequently. This is a brand-new thing, and it's a very sophisticated thing.

EVANS: Where have you been?

CORT: Any guy on the street corner -- I'm a recovering drug addict and alcoholic, so I have been on the front lines of this. I also work inside of treatment. I am on the front lines of this.

You give me the guy any day slinging dime bags down on the street corner to the 20 lobbyists in suits who are running all over Colorado, trying to get to us to relax all of the advertising laws that we've got out here. That's criminal, and that's a terrible idea. The way that we could legalize here in the states, we could do it so much smarter.

EVANS: Nothing is worse...

(CROSSTALK)

LEMON: Thank you, guys. Thank you guys, and I'll take a note from ...

EVANS: Underground...

LEMON: We're all gentlemen here tonight, and I thank all of you for joining us here on CNN.

In the meantime, there is another controversial new law in Colorado. This one prompted in part by the Academy-Award-winning film "Dallas Buyers Club," and it's a matter of life and death. More on that next.

(COMMERCIAL BREAK)

LEMON: How far would you go to save your own life? Many terminally- ill people are facing that question tonight, now that the governor of Colorado signed the so-called Right to Try bill, the first of its kind potentially giving dying patients access to medication that is not approved by the FDA. The Oscar-nominated movie "Dallas Buyers Club" helped inspire the law. CNN's Ana Cabrera has more now.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: You've tested positive for HIV.

ANA CABRERA, CNN CORRESPONDENT (voice-over): It's a movie that's helped trigger a movement.

MATTHEW MCCONAUGHEY, ACTOR: Importing illegal drugs for sale. Very serious offense.

CABRERA: In his award-winning role Matthew McConaughey smuggled unapproved drugs into the United States to treat AIDS patient in the 1980s.

IRENE AGUILAR, COLORADO STATE SENATOR: I think this movie helped put the winds in the sail for our legislators to say, "Yes, let's do this."

CABRERA: The "Dallas Buyers Club" movie has led to at least four so- called "Dallas Buyers Club" bills. New state legislation to help patients who are terminally ill get access to the therapies still being developed and tested.

AMY AUDEN, WIDOW: I said, he had stage four melanoma.

CABRERA: Amy Auden is a widow, now a single mother of three young children.

NICK AUDEN, CANCER PATIENT: Beautiful hug, sweetie.

CABRERA: Her husband, Nick, lost his battle with melanoma while seeking access to an experimental treatment.

A. AUDEN: We've been trying for over six months to get on one of the trials.

CABRERA: At just 41 years old, Nick, a successful businessman, outdoorsman and devoted dad, had tumors in his spine, his arm, leg and eventually his brain. He didn't qualify for the drug trials, because his cancer kept spreading.

A. AUDEN: To be told that, for business reasons supply issues and safety concerns, that you can't have the drug, you know, was devastating.

CABRERA: It's people like Nick that state lawmakers want to help.

IRENE AGUILAR, COLORADO STATE SENATE: I think the one thing that people would agree to is that when you are terminal, you really still need hope.

UNIDENTIFIED MALE: Patients should be able to try a treatment.

CABRERA: Colorado Governor John Hickenlooper signed what's referred to as a "Right to Try" bill Saturday. Similar bills are on the governors' desks in Missouri and Louisiana. And a Right to Try measure goes before voters in Arizona this fall.

The legislation typically gives terminally-ill patients the Right to Try a treatment without FDA approval, potentially cutting months of waiting when some patients have no time to spare. The Colorado Right to Try law instead requires a doctor recommendation. The unapproved treatment still has to pass phase one trials for safety, insurance companies don't have to cover patient costs and the drug companies have to be willing to give the patient access to the drug, but the law doesn't force them to. That's where critics say these Right to Try laws fall short.

ART CAPLAN, NYU LANGONE MEDICAL CENTER: They're going to need assistance in manufacturing more of their drug and quickly if they're going to give some of it away to people who are desperate.

They're also in a situation where he don't want the FDA telling them, "Hey, you gave this drug to six terminally ill people, and they all died. Did your drug kill them or did the disease kill them?"

CABRERA: Ultimately, the Auden family had the FDA's support but could not compel the drug companies to say yes.

A. AUDEN: Because in the end it's a billion-dollar game.

CABRERA: But Amy remains hopeful this new legislation will pressure pharmaceutical companies to provide the drugs.

A. AUDEN: I hope that this is just going to be a change in the environment and a step in the right direction where they realize they can't get away with saying -- with saying "no" when they can save someone's life.

CABRERA: A life with no other fighting chance.

Ana Cabrera, CNN, Denver.

(END VIDEOTAPE)

LEMON: All right, Ana. Thank you very much.

I want to bring in someone who knows the stakes in this debate all too well. His name is Jason Collier. His son suffers with spinal muscular atrophy, and Jason has been trying to get access to experimental drugs for some time now. He joins us exclusively tonight.

Thank you so much for joining us tonight. How is Jake?

JASON COLLIER, SON HAS SPINAL MUSCULAR ATROPHY: Jake is doing OK. He's struggling with pneumonia from a flu he caught and was admitted on Sunday, but he seems to be progressing in the right direction.

LEMON: All right. Let's talk about him. Jake is 3 years old, and he suffers from spinal muscular atrophy. Tell us about his struggle with the disease and his prognosis.

COLLIER: Sure. He was diagnosed when he was roughly six months old. He's got Type 2, which is he's able to sit but not able to stand or walk.

He's, you know, he's a wonderful boy, and his prognosis is the -- there's no treatment for it right now. There's a lot of clinical trials and potential in regards to it, but there's -- really, it's just a matter of being taken care of for him. So there's not much.

And there's no -- in terms of his development, there's a certain level he'll plateau, which I think is probably pretty close to where he's at now, and that's about the level of ability that he will have.

LEMON: Are there drugs, though, which exist right now, but which don't have FDA approval that could potentially help your son?

COLLIER: Yes, absolutely. I mean there's -- there's several of them, several different treatments coming through.

One in particular is Isis (ph), which is a very interesting drug, and they're going into phase three. It's very promising. Obviously, there's no promises that it will absolutely work until they're done with the clinical trials, but for the things that we're talking about, we're not asking for that. We're just asking for kind of the chance to use it if it looks like, you know, the risk is worth taking.

LEMON: So there are three phases, right? And if a drug gets to three, then, you know, potentially it has some potential to help with the disease. And the next thing is a clinical trial. So you're hoping that now at phase three that he may be able to try this experimental drug. Are you willing to take this risk, these risks, even though it's at phase three now?

COLLIER: Yes, you know, we've tried to get into phase two and he was excluded because he has a G-tube which is gets fed directly through the stomach which was excluded. But in retrospect, it seems that was a bad decision because can you control their diet and their health a lot better that way, so a lot of kids with G-tubes are healthier.

For phase three the issue for us is that, because he's weaker, he's developed scoliosis, a curvature of the spine, and if it gets too bad, he has to have rods put in in surgery. And so the concern -- and I understand that from the pharmaceutical company -- is that that's going to interrupt the clinical trial. And so I understand from the clinical trial standpoint, but then again what do you do when you kind of fall out of that -- the criteria that they have?

LEMON: My question, what do you do? And I know scoliosis all too well. My sister had it, had surgery. Nine months in a body cast and had to wear a brace for years so I know what you're talking about, she was a child. Painful for a child. When it happened.

My question, though, is what are you hoping to get out of this, this Right to Try legislation, now that it has passed in Colorado? How can it help your son?

COLLIER: You know, for us it's just having the option or the chance to do something that we feel the risk is worth taking.

You know, there's other options out there. I could go to China and try some questionable stem cells. And we've looked at that, and we've decided, you know, that's not a risk we're willing to take.

But when we talk to people who've gone through phase one and phase two clinical trials, when we talk to our doctors, when we look at the research and we make an educated decision about taking the risk, this is probably one that I most definitely would be willing to take when it comes to this type of drug. There are others coming down the pike. It would be nice to see a little more maturity.

But for me it's looking at the whole picture and, yes, I understand until the FDA approves it, you can't really say it's going to help. But what we're saying is we want to give kids a chance, because like right now, he could get a flu, and he might pass away before we're able to get to the point where FDA approves something that will help him and even if we try it, we know that there's -- it's not going to be a promise that's going to help but it's at least a chance.

LEMON: You understand. You understand everything that goes along with it. Jason, thank you. Best of luck to you and to Jake and we appreciate you telling your story here on CNN.

COLLIER: Thank you very much.

LEMON: Coming up, the Right to Try law passed this Colorado is the first of its kind, and are other states poised to follow suit? But could this new law harm people more than it would help?

(COMMERCIAL BREAK)

LEMON: Welcome back, everyone. The Right to Try signed into law in Colorado is sparking a heated debate. So joining me now to talk about it is Lucy Caldwell, the communications director at the Caldwell Institute. Also, Dr. Andrew Von Eschenbach, the former FDA commission; David Kroll, the contributor to Forbes.com, where he writes about drug development; and CNN's very own Elizabeth Cohen, the author of "The Empowered Patient." Good evening to all of you.

David Kroll, let's start with you first. When we hear cases, you know, like Jake Collier's, it seems like to makes a lot of sense to give his father at least the option to ask for a drug in the late stages of testing. I mean, that -- that could help save his son's life. Is that worth it?

DAVID KROLL, FORBES.COM: Well, I think -- I think we have to step back for a second, Don, and just realize that the reason that we have a drug approval process is so that we get drugs to people who need them as quickly as possible while also having a good measure of the relative safety of the drug in the particular setting where it's going to be used.

So we do take into account, when we're developing these kinds of drugs, that people are in sort of terminal life-threatening situations. And so a lot of times we really don't know until the drug gets almost all the way up to approval just how effective it's going to be.

LEMON: So you don't think he should get that option until he gets almost up until approval?

KROLL: Well, I mean, so phase one trials don't even tell you anything about effectiveness. Phase one trials simply are there to determine safety.

LEMON: I understand that. KROLL: Phase two...

LEMON: I understand that and I'm going to get to that in the weeds (ph) here. But just to answer my question. You don't think that he should have that option until it's that late in the game when it comes to a drug?

KROLL: No, I believe that he should have the option. But I -- we already have a system for that. We have the FDA has a compassionate use provision.

LUCY CALDWELL, COMMUNICATIONS DIRECTOR, GOLDWATER INSTITUTE: We don't.

LEMON: Go ahead, Lucy.

CALDWELL: We don't have a system at all in place. And the reason that the Goldwater Institute designed the Right to Try initiative is that we have a million Americans that -- dying of terminal illness every year and the vast majority of them are locked out of accessing these drugs.

Am I saying that there's a magical cure for every disease out there? Absolutely not. But there are a lot of promising drugs that are in trials that families like Jake's want to access, and only 3 percent of the sickest patients, by and large, are even able to get into the clinical trials, so there is not a system in place. The system is broken, and that's what Right to Try is going to change.

ELIZABETH COHEN, CNN MEDICAL CORRESPONDENT: There is a system, Don...

ANDREW VON ESCHENBACH, FORMER FDA COMMISSION: Don...

LEMON: Go ahead, Elizabeth.

COHEN: There is a system, but I think the problem is the system does not work very well. The system is laid out. There's, you know, it's all there in black and white.

But when you go to Change.org and you see patient after patient after patient looking for these drugs and being told no, you just know that something is just not quite working.

I interviewed a man whose 15-year-old daughter has cancer in her brain, abdomen, pancreas, lungs, bones and even more places. Went to three major drug companies; told no by all three of them over and over again.

LEMON: Yes, but it's -- I understand that but then...

VON ESCHENBACH: So...

LEMON: Usually people, though, they -- drug companies don't like to give patients drugs, because they say usually people, you know, they're so far gone that the drugs can't really help them once they're at the phase that you're talking about, Elizabeth. CALDWELL: That's...

COHEN: Right. That's true...

VON ESCHENBACH: Don...

COHEN: That is a problem, and so drug companies aren't going to like it if someone goes on social media, makes a big deal out of this. Then they get the drug, and then they die, especially if it's a child. That is a P.R. nightmare.

LEMON: Because they're not part of the controlled...

CALDWELL: But -- but at the same time ...

VON ESCHENBACH: Don -- Don...

LEMON: Dr. Von Eschenbach, go ahead.

VON ESCHENBACH: Yes, you know, the point is that we all want early access, expanded access to these drugs. That's not the issue.

And it is true that we have a problem, but we have to understand that problem before we embark upon a solution.

You asked a little earlier is there potential harm to the legislation? The real question is, is it really going to fix and solve the problem? And the answer is no because, one, there is the opportunity for expanded access. The FDA has processes and procedures that have been in place. In 2013 there were almost 1,000 applications for...

CALDWELL: Exactly.

VON ESCHENBACH: ... expanded access.

CALDWELL: There are fewer -- let's...

VON ESCHENBACH: I think there were only two that were rejected.

LEMON: All right. Go ahead, Lucy.

VON ESCHENBACH: So what's the problem? The problem is downstream.

CALDWELL: Let's put that into perspective. The FDA loves to talk about its 99 percent approval rating, but let's just talk about cancer. Half a million Americans get diagnosed with cancer every year, and 40 percent of them try to get into clinical trials. That's about 200,000 people.

The vast majority of them are not allowed in. Does anyone really think that, even just focusing on cancer, that only a thousand of them tried to pursue it? No. They are locked out of the system. The FDA locks them...

VON ESCHENBACH: That's not -- that's not the answer.

LEMON: Let him respond.

CALDWELL: ... locks them out at every state.

VON ESCHENBACH: That's not expanded access.

CALDWELL: And -- and how many...

LEMON: Let him respond. Go ahead, Doctor.

CALDWELL: That is expanded access. That is...

LEMON: Dr. Eschenbach.

VON ESCHENBACH: I think access to clinical trials is not the issue.

LEMON: Say again, Dr. Eschenbach.

CALDWELL: I think that I just was with a...

LEMON: Lucy, hold on.

CALDWELL: ... sarcoma...

LEMON: Lucy, hang on.

VON ESCHENBACH: Lucy. Look, there's a lot -- Lucy, there's a lot of emotion in the issue that you're putting on the table. There's no question about that. But we have to be rational and reasonable about this.

The question that is at issue here is there are desperate patients who need and want access to experimental therapies, and what we need is to do that rationally and reasonably.

CALDWELL: Absolutely.

VON ESCHENBACH: One, to protect those patients but also to make sure that they are getting the right thing in the right way. So it's important to have an agency like FDA that sets those kinds of principles and guidelines in place.

The problem is not with the FDA. You already alluded to the fact that what happens more often is the problem rests with the sponsor, the company, the person who -- or whoever owns the drug not being or not willing to be able to provide that drug for those circumstances. Let's focus on that. Let's fix that problem, and this legislation does not do that.

LEMON: OK. Stand by, everyone.

COHEN: But what if...

LEMON: David and then Elizabeth. David, go ahead.

KROLL: Yes, what I was going to say is one -- one also has to remember that giving unfettered access to experimental therapeutics could potentially damage the opportunity of other patients to be able to get access to that drug when it's approved.

If there are very serious side effects that are detected with experimental use of drugs, and there's a huge social media campaign around that patient getting the drug; if that patient's death is hastened, that could potentially...

CALDWELL: Not what we're talking about here.

KROLL: ... create a firestorm that might influence FDA's approval of that drug.

LEMON: Yes. And of course -- quickly, Elizabeth, go ahead.

COHEN: One reason why the -- one reason why drug companies don't like to take on compassionate use patients is that, as Art Caplan (ph) and others have said, if something goes wrong, the FDA is going to say, "Wait a second. Are we sure we want to approve this drug? Look what happened to this compassionate use patient."

So the experts that I've talked to about this...

CALDWELL: I -- I...

COHEN: ... said look, we need to get into a room together, smart people, and figure out ways the FDA can sort of address this.

VON ESCHENBACH: Yes.

COHEN: The FDA has to be involved.

VON ESCHENBACH: Exactly.

COHEN: That is what drug companies executives and others have said to me. They have to be involved.

KROLL: But you can't -- but you can't make companies do something...

VON ESCHENBACH: Very well said.

LEMON: David, that's going to have to be the last word.

CALDWELL: I have to take issue...

LEMON: Unfortunately -- unfortunately.

CALDWELL: I have to take...

LEMON: Thank you. Everybody is very passionate about that. When we come right back -- we'll be back in a moment.

(COMMERCIAL BREAK)

LEMON: That Lucy, man, she's passionate, isn't she? So this is CNN TONIGHT, TOMORROW. Yes, that is what we are calling it tomorrow. Our look at the stories that you'll be talking about tomorrow. Remember the guy who walked into the stage during the Oscars and delivered pizzas to some of Hollywood's biggest stars? Edgar Martirosyan got a thousand-dollar tip from Ellen DeGeneres, but that's not the end of his 15 minutes of fame. He and his brothers have opened up their own pizza restaurant. It's called Wood, serving high- end pizzas, including lamb and mint, and arugula and prosciutto, which could be on the menu for your next Oscar party.

I'm Don Lemon. Thanks for joining us. Man, she was passionate. That's it for us tonight.

"AC 360" starts right now.