Butler: Griner case difficult for U.S. for one key reason: her guilt

Of Penn State University

The freeing of WNBA star Brittney Griner from a Russian prison has been treated with general delight in the United States. However, some Americans have expressed concern over the equivalence of the exchange, which saw convicted arms merchant Viktor Bout returned to Russia.

As a longtime scholar of Russian law, I have some reflections to offer on the application of Russian law in Griner’s case and, more broadly, in such exchanges in general.

The problem American negotiators face in such situations is that it matters whether the U.S. citizen is guilty of committing the crime alleged under foreign law or whether there has been a miscarriage of justice, incompetent investigation or prosecution, or false accusation. From this perspective, the Griner case was difficult because she was guilty.

Griner has yet to give a full account of her story, but the available facts suggest that she legally acquired in the U.S., probably in Arizona or California, vaping cartridges containing hashish oil. She purchased them under a physician’s recommendation, but not through an actual prescription.

She then, probably illegally under federal law, carried them across state lines to New York, where vaping cartridges can be sold legally, but cannot be legally carried to states where they are banned.

From there, the question becomes a classic law school examination issue: Did Griner violate Russia’s zero-tolerance narcotics law when she boarded a Russian aircraft in New York – unless she flew Delta, the only U.S. carrier making non-stop connections.

Or was the law broken when that aircraft entered Russian airspace, or touched down in Moscow? Or perhaps when she disembarked at Sheremetyevo Airport, where she passed through passport control. Or when she chose the green customs channel at the airport, instead of the red channel allowing her to declare what she had in her possession, and was confronted by a drug-sniffing dog.

One thing is incontrovertible: She took the green channel.

In Russia, accusations of possession and smuggling of narcotics require proof of “direct intent” – that the individual knew or should have known what act they were performing. In this case, passing through the green channel while carrying a controlled substance would constitute direct intent.

Griner said she didn’t “intend to commit a crime” when she packed the vaping cartridges in her hand luggage, but that was immaterial. The question was whether she entered the green customs channel while knowingly in possession of contraband.

She chose not to declare the cartridges. Had she done so, they likely would have been confiscated with no legal exposure.

Under Russian law, and also that of the U.S., direct intent was present. What she did was, from her government’s standpoint, careless and thoughtless at best.

Moreover, it exposed the United States, in the end, to an unwelcome scenario of exchanges at a most difficult diplomatic juncture.

The personal costs to Griner were not insignificant. It likely cost her a lucrative contract, in addition to a criminal conviction and nine months in custody.

Russian law does not recognize medical uses of marijuana. Griner had been traveling to Russia for eight years, so would be expected to know that.
Under Russian law, she possessed a “significant amount” — the lowest threshold of criminal liability.

The case of Marc Fogel, an American serving a 14-year sentence in Russia for smuggling narcotics, has come under renewed interest following the Griner exchange.

He was judged to possess a “large-scale amount,” demanding a more severe sentence. And it is beyond doubt that he was aware of the risks.

The sentences imposed on Griner and Fogel were severe. Other alternatives were potentially available, including administrative responsibility — legal code for a category of offenses we do not have in Common Law jurisdictions. They carry sanctions, but are not treated as criminal.

Without imputing political motives to the apprehension of Griner — which may or may not be justified — the Russian Procuracy would have had reason to assume Griner and Fogel acted with direct intent, both in the narrow legal sense and the larger human sense. They had prior experience with and knowledge of Russian legal practice, yet brought in a prohibited substance nonetheless.

Another lesson to be learned from the Griner case is that American media frequently experiences difficulty in explaining foreign systems of criminal law. Part of the problem is the “Americanizing” or “Anglicizing” of Russian criminal law and procedure.

In the Griner case, most media reported that she was liable for punishment of up to 10 years, but omitted to say that the Criminal Code imposed a minimum of five years. This understated the gravity of the offense in Russian law.

The nine-year sentence handed to Griner was on the heavy end, but consistent with the Fogel sentence for a larger quantity.

Also, references were made to a guilty plea by Griner, but Russian criminal procedure does not make provision for pleas. The prosecution has to prove its case irrespective of what the accused may say.

There are good historical reasons from the Soviet past as to why acknowledgments of guilt – or “confessions” – do not affect the burden of proof on the prosecution. In this case, however, the burden of proof was easy to satisfy, and Griner’s counsel would have given sound advice in suggesting she acknowledge guilt after the prosecution presented its case.


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