Nevada Supreme Court denies petition to free prisoners in pandemic

The Nevada Supreme Court has denied a petition to free vulnerable and elderly state prisoners because of the coronavirus.

“Our observations are consistent with those made by other courts faced with making COVID-related decisions of this character and magnitude,” Chief Justice Kristina Pickering wrote in a unanimous decision, citing decisions in Kansas and Washington.

Lawyers for Gregory Kerkorian, a 74-year-old man behind bars on animal cruelty charges, and others had asked that the high court, Gov. Steve Sisolak and Attorney General Aaron Ford facilitate the release of inmates susceptible to COVID-19, saying that doing so could mitigate the spread of the virus in prisons and throughout the state.

Kerkorian, whose late uncle Kirk Kerkorian is considered one of the architects of modern Las Vegas, suffers from high blood pressure and psoriasis and is susceptible to infections, his attorneys Michael Horvath and Michael McAvoyAmaya have said.

On Friday, they told the Las Vegas Review-Journal that they were “disappointed” in the high court’s decision and plan to ask a judge in Nye County, where Kerkorian was originally charged, to modify his sentence.

Prison officials, through spokesman Scott Kelley, declined to comment on the order. At least 14 staff members, including a trainee, have tested positive for the virus, according to Kelley and a state website.

Prison director Charles Daniels has said that none of the coronavirus tests on 39 inmates proved positive. That includes nine pregnant women at Florence McClure Women’s Correctional Center, Kelley said Friday. He added that the Department of Corrections “has received more tests in the past weeks and we now have 547 available for testing offenders.”

McAvoyAmaya said he may seek testimony from prison officials about coronavirus testing “to see if anything they have been saying about this is true. We’ve got to get them on the record and see what’s going on in the prison system.”

The high court decision indicates that lawyers for prisoners could petition lower courts, the Nevada Parole Board or the Nevada Pardons Board for a ruling on whether inmates should be released because of the pandemic.

“Kerkorian has not demonstrated respondents (NDOC) have acted arbitrarily or capriciously, or manifestly abused their discretion because he has not demonstrated a constitutional violation (i.e., cruel and unusual punishment based on the conditions of confinement or an equal protection violation),” the high court decision states.

Earlier this week, the Nevada Sentencing Commission, headed by Supreme Court Justice James Hardesty, rejected recommending that Gov. Steve Sisolak move to depopulate the state’s prisons in an effort to stave off the spread of coronavirus.

Hardesty abstained from voting on the decision, citing the pending litigation.

Instead, the commission unanimously agreed to ask the governor to consider speeding up the enactment of a “geriatric” parole statute, which is set to take effect July 1. Such a move would mean that about six people older than 65 in Nevada Department of Corrections, which houses roughly 13,000 inmates, could have a chance at early release, prison officials said.

It was unclear whether Kerkorian would be eligible for release under the new law, his lawyers said.

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.