After three failed votes on more sweeping measures to depopulate prisons during the pandemic, an advisory board on Wednesday recommended that the governor implement a statute two months early that allows certain non-violent inmates over the age of 65 to leave prison early.

The provision, which is already scheduled to take effect July 1, appears to apply to only six of Nevada’s more than 12,000 inmates. It’s the most concrete step taken yet in response to fears that state prisons, in spite of enhanced preventative measures and no reported positive tests among inmates yet, could become deadly tinderboxes for a viral outbreak, especially as the number of cases among staff has grown.

The Nevada Sentencing Commission voted unanimously on Wednesday during a nearly eight-hour meeting to speed up the use of “geriatric parole.” Because the Sentencing Commission’s authority is limited to an advisory role, the proposal will go to the governor, who has said he’s waiting on the Sentencing Commission’s advice before acting on the calls to consider early releases.

The unanimous vote came after unsuccessful attempts to recommend the governor, pardons board and prisons chief consider a broader proposal to “responsibly depopulate” through actions such as releasing of people who are eligible for parole but whose release is held up by lack of housing. Other categories discussed were people who are considered by federal criteria to be “vulnerable” because they are older or have underlying health conditions and are also near the end of their sentences.

“We trusted the sheriff to make those decisions on how to responsibly and safely depopulate,” said Democratic Assemblywoman Rochelle Nguyen, referring to pandemic-related depopulation as Las Vegas’ largest jail. “I see this putting the people that have the knowledge and the position to make those specific considerations for what is responsible, and I trust them.”

But the board deadlocked along the fault lines seen at a Sentencing Commission meeting two weeks earlier, with law enforcement, prosecutors and prison officials opposed to early releases and criminal defense attorneys, civil liberties advocates and academic interests supporting it. 

Washoe County District Attorney Chris Hicks defended prisons’ actions taken to prevent the spread, and argued that letting prisoners out early would overturn a lawfully imposed sentence.

“The people that are in our prisons are of the type that we would expect to be in our prisons. The narrative to the contrary is just not accurate,” Hicks said. “And we’re contemplating this in spite of the extraordinary work that [prisons] Director [Charles] Daniels has done.”

Hicks also pointed out that early release proposals were opposed by Jon Ponder, a former inmate, founder of the Hope for Prisoners reentry program and a commission member. 

“The 400 or 500 people that we’re working with that have already got out of the prison — listen, they’re hurting right now on the streets. They have no jobs, no place to go,” Ponder said. “I’m posing the question — is it safer for them to be where they are … as opposed to us ‘responsibly depopulating the prison?’”

Groups including the ACLU of Nevada called weeks ago for early releases as a way to allow more social distancing and reduce the risk of coronavirus spreading. After the meeting, the group urged Sisolak to take action beyond the commission’s modest proposal.

“We can’t wait until there is a COVID-19 outbreak in Nevada’s prisons,” the ACLU tweeted. “@GovSisolak has the authority to convene the Parole Board and identify vulnerable, eligible, and releasable inmates. He does not need the Sentencing Commission to act.”

Actions in Nevada and other states

During the meeting, analysts with the Crime and Justice Institute gave a presentation about steps other states were taking in response to the pandemic, from giving inmates furloughs out of confinement to releasing them early if they were near the end of their sentences. Examples came from both red and blue states including New York, New Hampshire, Louisiana and Arkansas.

Analysts identified 17 states, or about one-third, that did not appear to be taking any action on early inmate releases as of last week. They acknowledged they had not cross-referenced the lists to determine whether states that released inmates had had outbreaks of COVID-19 among their populations.

Nevada Department of Corrections Director Charles Daniels announced at the meeting that the number of staff members who have tested positive is up to 11, while no inmates have tested positive. He said 39 inmates have been tested, and 547 tests are still available.

One concern raised by Emily Salisbury, a UNLV criminal justice professor who sits on the board, is that some institutions in other states that tested more widely have found a majority of inmates tested positive for COVID-19. She said if a large number of people within prisons are asymptomatic carriers, the virus could continue to cycle through the institutions.

Chief Medical Officer Dr. Michael Minev said that widespread testing of asymptomatic inmates is on the table for the future, although he said that it wasn’t an option at the moment because of limited testing supplies in the state.

Daniels pushed back when one commissioner pointed to the decision earlier this month to depopulate the Clark County Detention Center and asked whether releasing medically at-risk inmates would help promote social distancing within the prisons.

"I do the best we can with our circumstances and today we have zero positives,” Daniels said. “I will not continue to go back and forth on what others are doing. Our circumstances are ours and we’re doing our best to manage it.”

Releasing people eligible for parole

One group discussed as a candidate for release are the hundreds of inmates who remain in prison even though they are eligible for parole.

Anne Carpenter, head of the Division of Parole and Probation, gave a detailed accounting of 357 people within 14 different categories on the so-called PED list and what barriers hold them back from release:

• Six inmates who have issues with their initial pre-parole plans
• Four inmates are sex offenders whose plan was denied because of limitations in the Adam Walsh Act — a law restricting how close sex offenders can live to schools, parks and other places children congregate
• 40 inmates are awaiting another state to conduct an “interstate compact case” for their relocation out of state. Some states have moratoriums on transfers
• 64 inmates are non-sex offenders whose plans have been denied, sometimes for technical issues such as a disconnected phone line or incorrect address, or because “there’s just no viable housing”
• 13 inmates are awaiting extradition to another jurisdiction or law enforcement agency
• 5 inmates are awaiting review from the Parole Board for situations such as inability to pay for supervision on the house arrest program 
• 29 inmates have exhausted all private residence or Medicaid-funded housing options, but may be approved for a halfway house or inpatient program
• 24 inmates have been accepted into a Medicaid-funded housing program and are awaiting an open bed
• 30 inmates are “actively refusing parole,” sometimes because they don’t want to be supervised upon their release
• 50 inmates lack housing options, largely because the “indigent funding” account the state uses to pay rent for people has been exhausted, or because housing providers are not willing to accept them
• 58 inmates are actively under a pre-parole investigation
• 22 inmates have an approved release plan but are awaiting release, sometimes because of transportation issues or because they’re awaiting bed space to open
• 12 inmates have incurred a new infraction while they’re incarcerated and may face new charges as a result
• 34 inmates do not have housing options, sometimes because they don’t have proper identification or refused housing in a homeless shelter

Carpenter said one possible solution would be some sort of state-run facility where people could live upon release without the restrictions that private landlords sometimes place on formerly incarcerated people. She also suggested relaxing statutes that require parolees have housing that has been licensed by the state.

But she noted that the division has been asked to propose cuts as large as 14 percent to its budget as state revenues tumble, and that staff reductions could reduce her agency’s ability to supervise a large number of  new people on parole.

"If a lot of people were released to the street and probation had to supervise them, we probably are not equipped with the resources that we need to do the job, or at least do it well,” she said.

Updated at 8:26 p.m. on April 29, 2020 to add more details from meeting.