The Nevada Supreme Court has denied a request from a 74-year-old inmate who argued he and other inmates should be released from prison early because his age and medical conditions make him vulnerable to COVID-19.
The unanimous decision, issued Thursday, says there are disputes of fact between plaintiff Gregory Kerkorian and the Nevada Department of Corrections, which has argued that Kerkorian is in a cell alone with his own toilet and is able to socially distance. But it doesn’t preclude Kerkorian from working out those disputes in a lower court or through the state’s pardons or parole boards.
“We cannot say, as a matter of law, that the respondents have violated a clear and unmistakable legal duty to act,” the justices wrote. “Kerkorian has not demonstrated respondents have acted arbitrarily or capriciously, or manifestly abused their discretion.”
The decision also rejects on procedural grounds Kerkorian’s effort to make the case essentially a class action that applies broadly to all vulnerable prisoners.
Kerkorian, who is the nephew of the late casino magnate Kirk Kerkorian, had argued that prisons are a “powder keg” for the disease. To date, seven of the 10 largest COVID-19 clusters in the U.S. are in correctional facilities, with one cluster in Ohio having more than 2,000 cases.
But the Nevada prison system has stridently argued that it is taking sufficient precautions and has pointed to the fact that it has no reported positive cases among inmates, although 11 staff have tested positive. Prison officials argued that they began to act in February and suspended visitation in early March; officials even provided a comprehensive list of the cleaning products available at Southern Desert Correctional Center, where Kerkorian is housed.
The prisons further contested Kerkorian’s claims to vulnerability, saying he didn’t provide evidence for his claim that he has high blood pressure and did not reference needing medication for the condition.
Kerkorian was imprisoned on animal neglect charges and is eligible for parole in October.
The case comes against the backdrop of a tense policy discussion about the state’s steps to address coronavirus within prisons. The Nevada Sentencing Commission voted Wednesday to recommend fast-tracking a law set to take effect in two months that might offer early release to just six senior adult inmates, although Gov. Steve Sisolak said Thursday that he thought the commission was going to make a broader recommendation, and that he might consider more sweeping action.