Rep Elliott Naishtat

STATE REP ELLIOT NAISHTAT: AN AFFIRMATIVE DEFENSE FOR PATIENTS

In February 2013, I had the opportunity to meet and talk with Texas State Representative Elliott Naishtat-D; this native New Yorker who has lived in Texas for forty-one years has not only earned a Masters in Social Work and Law from the University of Texas, but has become a consistent proponent in trying to bring-forth a bill (for the protection of medical marijuana patients and their physicians) over the legislative sessions of 2003, 2005, 2007, 2011, and the current session of 2013. We talked about plenty, from a possible affirmative defense to the national picture, legislator support, and simply where we are in Texas!

AUSTIN420: For our readers out there, can you explain what House Bill 594 would do for medical marijuana patients and their physicians?

NAISHTAT: It would not legalize anything, and that’s why I think it has a chance of gaining momentum to create an “affirmative defense”. And the best way to explain it is this way: If you have a bona-fide medical condition, a legitimate condition (AIDS, Cancer, Multiple Sclerosis, Parkinson’s, Glaucoma), and you’re experiencing pain, and your physician, your licensed doctor, suggests that you try marijuana for medicinal purposes, the doctor might say, ‘You know, I can’t prescribe anything because it’s illegal, but I’m going to suggest, to recommend that you try this. We’ve tried just about everything that is out there and it hasn’t worked. You still have chronic and debilitating pain. This will help you to work, if you want to try to work. This will help you live’. So, here are two hurdles or pre-conditions, a bona-fide medical condition recognized by your doctor and the doctor suggesting or recommending that you try marijuana to relieve the effects, the symptoms of the condition. Let’s say that you’re in your house and you’re smoking some marijuana and they break-down the door, arrest you and bust you; that’s where the “affirmative defense” kicks in. So, per the affirmative defense, you would be authorized to go to court, go before the judge to say, ‘Your Honor, look at me, I have multiple sclerosis, or I have AIDS. I am not a criminal. My doctor suggested I try this. It’s working for me. It helps me live and work with the pain associated with my condition.’ And the judge (per this legislation) would be able to look you in the eyes and say ‘Go home, I’m going to dismiss the charges.’ Included in the legislation, are protections for physicians. So that if they do this, law enforcement can’t come after them. Someone told me that doctors can’t, that they break some code or by laws if they talk about illicit drugs or suggest the use of them, that’s why we put the protections in there. This is a bill that helps people who are sick and again, it doesn’t legalize anything.

AUSTIN420: What personally inspired and encouraged you to write this bill?

NAISHTAT: It was people coming here, several who had been busted and arrested. So, over the next 3 sessions, ’07, ’09, and ’11, the bill (not sure why) was not referred to the criminal jurisprudence committee. I think it was referred instead to the Public Health Committee, and the Chair in ’07 said, ‘I understand what you’re trying to do and we’re not ready for it’. The next session, (and I’m on the Public Health Committee as Vice-Chair) the Chairman wouldn’t give me a hearing. She said, “Why build-up peoples hopes Elliott, it’s not going to go anywhere, it will not get out of the Public Health Committee. Why waste peoples time, why waste the committee’s time?’ So we didn’t get a hearing. Last session, she said the same thing. But last session, we didn’t have a lot of people coming in saying they wanted to work on it. Last session she said, ‘I really don’t want to take the committee’s time. If you really insist on it, I’ll let you have a hearing’. And we made some phone calls and checked with Dorothy Brown and she said, ‘not much has really come in.’ I assume she would have given me a hearing, if I had said, ‘I’ve got to have a hearing; please let’s just have a hearing’, but I didn’t see any reason to push it, for a bunch of reasons, political reasons. So now, we’ve come to this session, she got reappointed Chair of the Public Health Committee, she’s a Republican, I’m the Vice-Chair and I’m a Democrat, and a lot of stuff has happened. After the last several years, there are now 18 states (plus D.C.) that have either legalized the medicinal use of marijuana or in one way or another authorized its use without legalizing it. Plus, we have the state of Washington and the state of Colorado who have legalized!

AUSTIN420: And that walks right into my next question about how the national picture of the cannabis movement” has been influential to the Texas Legislature?

NAISHTAT: Well, I don’t know, but I will get a hearing this time. I’ve been talking to members on The Public Health Committee or who are interested in Health and getting much-more positive feedback. A couple of members have said “let me think about this Elliott”; they’re not just saying, “No I can’t”. We reelected a bunch of sort of Right-wing Republican Tea-Party Libertarians and I’ve talked to two or three, explaining it so carefully that ‘this does not legalize anything, doctors cannot prescribe this per HB594’ and they are saying, ‘this is good for everybody, it protects those who are sick, a doctor has to be involved, the doctor is protected and a judge can say, ‘charges dismissed; go home’.

AUSTIN420: This has been your 5th time in introducing an affirmative defense bill, what has been the major difference this time around?

NAISHTAT: There’s been a lot of attention focused on health care, via the Affordable Care Act, so it’s very much on the eyes and ears of this country. Two states (while this generated a ton of publicity) have legalized marijuana for recreational use. We know that there are now 18 states (including D.C.) that have legalized medicinal marijuana or have come up with a way to authorize its use. There’s also been a lot of publicity about what’s happening in California with distribution and clinics, and so it’s more on people’s minds than it ever has been. A lot of the press has been negative, it’s all been critical, and this affirmative defense bill avoids all of the problems that have been articulated, because it doesn’t pretend to legalize anything. There’s nothing in there except an individual who has a bona-fide medical condition and his or her doctor, and the doctor says, ‘it might help, there’s been a lot of studies. I know people who’ve had positive results using marijuana, why don’t you try it.’ It puts in a protection for the doctor; the doctor can’t prescribe it he can only suggest it and then IF you get arrested, all you do is go before the judge. No laws have changed, nothing’s been legalized and the judge would be authorized (by this bill) to say, ‘you’re obviously not a criminal, you’re a sick person whose dealing with the pain; go home.’

AUSTIN420: If passed, do you think an affirmative defense law could be the stepping stone to opening the discussion for a broader medical marijuana bill in the future?

NAISHTAT: It could be. Right now, what I am trying to do is be realistic about where we are in Texas. I am trying to get a bill through that will help people who are sick. If this opens doors to a better approach for people who are ill and have a bona-fide medical condition, so be it. There’s one bill that’s been introduced this session that would decriminalize marijuana, a certain amount; it would still be illegal but that’s not what my bill is about. I’ve been asked many times about the slippery-slope, the Trojan-Horse, but I don’t get into that. For me, this is not step one, I don’t have a hidden agenda; this is what I want to do. What that does down-the-line is up to the people.

AUSTIN420: The Texas Democratic Party’s platform now endorses both medical marijuana and decriminalization, would you consider being a co-sponsor or support Rep. Dutton’s HB184 (which would reduce the penalty for possession of an ounce or less to a Class C Misdemeanor)?

NAISHTAT: I would consider it, but I don’t want members of the legislature, or the public, to get confused as to what I’m trying to do. Harold is a dear friend; we’ve talked about it, and as far as me getting this bill through, which I think has a much better chance than decriminalizing, I haven’t decided yet whether that would help or hurt “my efforts” to get this bill passed and Harold understands that. ~