Criminal law

Brittney Greener’s case was difficult for US negotiators for one main reason: She was found guilty

the WNBA star Brittney Griner released from Russian prison It was generally happily welcomed in the United States.

Announcing the deal that saw her release on December 8, 2022, President Joe Biden He praised the “painful and intense negotiations”.Which made it happen. Others might have legitimate concerns Over the parity of the exchange witnessed Convicted arms dealer Victor Bout He returned to Russia.

K A longtime scholar of Russian lawI think this incident prompts us to think about the application of Russian law in the Greiner case, and to look more broadly at such exchanges in general.

The problem faced by American negotiators In such cases is that it matters whether the U.S. citizen is guilty of the alleged offense under foreign law or whether there was a miscarriage of justice, an incompetent investigation or trial, or a false accusation.

From this perspective, Grainer’s case was difficult.

The direct intent question

Greiner has not yet provided a full description of her story, but available facts indicate that she legally obtained in the United States, possibly in Arizona or California where she resides, vaporizer cartridges containing cannabis oil. On the recommendation of a doctor, but not a prescription. It then, possibly illegally under federal law, transported them across state lines to New York, where vaping cartridges are sold but cannot be transported to states where they are not legal.

Hence, the question becomes a classic law school exam case: Did Greiner break his law? Zero tolerance of Russian legislation On a drug charge when you boarded a Russian plane in New York—unless, of course, you flew with Delta as the only direct American airline?

Or was the law broken when that plane entered Russian airspace, or landed in Moscow? Or perhaps it was when the passengers disembarked at Sheremetyevo Airport that Greiner passed through passport control; Or when the basketball star chose the green customs channel at the airport instead of declaring what she had in the red channel and got caught out by someone. Police dog guarding the Green Canal. These were all possibilities, but the Green Channel was indisputable.

Accusations of possession and smuggling of narcotics Under Russian criminal law They require proof of “immediate intent” – that the individual knew or should have known the action he was performing. In this case, going through the green channel with nothing to declare while carrying a controlled substance would constitute direct intent.

it, as Greiner saidShe did not “intend to commit a crime” when packing e-cigarette cartridges into her handbag was immaterial. The question is whether it entered the green customs channel with intention.

A woman wearing glasses looks pensive behind bars.
Brittney Griner, prior to release.
Evgenia Novozhinina/AFP via Getty Images)

The choice I made was not to advertise the cartridges. Had she done so, the cartridges would have likely been confiscated, but no offense had been committed.

Under Russian law as well as US law, the direct intent was present. What she did, from her government’s perspective, was at best careless and reckless. Moreover, the United States has, after all, offered an unwelcome scenario of exchanges at a very difficult time for the international community.

The personal costs to Greiner were not insignificant. It will probably cost her lucrative contracta criminal conviction, and about nine months or so in custody.

And under Russian law, quantity matters

Russian law — like many jurisdictions, including many US states — does not recognize the medical uses of marijuana. Greiner has been traveling to Russia for eight years, and he is expected to find out.

And under Russian law The amount in her handbag qualifies as K “Substantial amount” – the lowest threshold for criminal liability.

Another person whose situation is receiving more media attention in light of the Greiner case is Mr Mark VogelHe is an American who is still serving a 14-year criminal sentence in Russia for drug trafficking. His case falls into the following category – “large amount” of marijuana, and a heavier sentence. He was undoubtedly aware of the dangers of using this substance for personal medical purposes.

There is no doubt that the sentences imposed on Greiner and Vogel were harsh. Other alternatives may be available, including Administrative responsibility A legal code that includes a class of offenses that we do not have in common law jurisdictions. There are penalties for violations, but they are not treated as criminal.

And without attributing political motives to Grainer’s arrest – which may or may not have been justified – Russian prosecutors He would have reason to assume that both Greiner and Vogel acted with direct intent either in the narrow legal sense or in the broader human sense. They are both familiar with Russia, and not ordinary tourists. They brought in a banned substance, had prior experience and knowledge of Russian legal practices in this area, yet unintentionally or knowingly brought in a prohibited drug.

The problem of “Americanization” of Russian law

Another lesson to be learned from the Graner case is that the American media often have difficulty explaining foreign systems of criminal law. Part of the problem is the “Americanization” or “Englishization” of Russian criminal law and criminal procedure. In the case of Greiner, most of the media reported that she faced a sentence of up to 10 years, but omitted to say that the criminal law imposes a prison sentence of at least five years. This reduces the seriousness of the crime in Russian law. The nine-year prison sentence handed down to Greiner was severe, but unheard of or unconscionable and consistent with the sentence against Vogel.

This was not the only error in foreign media reports. The smuggling charge was widely and correctly published, but it made no mention of the possession charge. marked with ““Guilt Plea” by GreinerBut Russian criminal proceedings do not contain appeals. The prosecution had to prove its case regardless of what the accused might say.

There are good historical reasons from the Soviet past for why admissions of guilt – or “confessions” – do not affect the burden of proof for the prosecution. But in this case, the burden of proof was easily met, and Greener’s attorney had offered sound advice when he suggested she plead guilty after the prosecution presented its case.

We have yet to hear a more complete version from Greener since her return to the States. And one must hope that the American negotiators not only achieved an exchange, but also an outcome that gives it no record of condemnation in Russia and empowers it, in an appropriate manner. Time to resume her $1 million Russia contract should she wish and circumstances permit.

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