Trade Exceptions

On August 4 the WNBA all-star Brittney Griner, a two-time Olympic champion, was sentenced to nine years in a Russian penal colony for drug smuggling. She was arrested in a Moscow airport on February 17, caught with less than a gram of cannabis oil in vape cartridges. In her trial last month, at which she pled guilty, Griner explained that she uses cannabis on a doctor’s recommendation to relieve chronic pain, and that she had packed the cartridges by accident. Biden denounced her sentence after months of lobbying from her wife, Cherelle, and from other friends and supporters. As Russia planned its assault on Ukraine (which began on February 24), Griner became a high-profile hostage, a source of leverage and a valuable candidate for a prisoner swap.

Even under less bellicose circumstances, the Putin administration has a history of arresting foreign citizens as bargaining chips. Naama Issachar, an Israeli-American citizen who was then twenty-five, was arrested in Moscow in 2019 while returning from a backpacking trip in India with about nine grams of hashish in her luggage. She was sentenced to seven and a half years in prison. As in Griner’s case, Issachar’s arrest was clearly motivated by something more than Russia’s desire to prevent the transport of drugs across national borders. Russia told her family that she would be released if the hacker Aleksei Burkov, then in Israeli custody, was returned to Russia.

Burkov was extradited to the US as planned, but Prime Minister Netanyahu managed to secure Issachar’s release in January 2020. Israeli media reported that he succeeded by promising to grant Russia ownership of a Russian Orthodox church in Jerusalem’s Old City, part of a Russian complex called the Alexander Courtyard. But the transfer never took place, and in June 2021 another Israeli citizen, Revaz Raphael Shmertz, was arrested in Russia, accused of real estate fraud. He has been denied access to the Israeli consul. The court decision granting Russia ownership of the church was reversed in March 2022, apparently as a result of Russia’s invasion of Ukraine. The next month, President Putin wrote to Israeli Prime Minister Naftali Bennett, demanding that ownership of the church be transferred to Russia immediately.

The US Department of Justice is opposed to prisoner swaps, which risk encouraging the arrest of American citizens for hostage diplomacy. But the US government is willing to make exceptions for cases with a sufficiently high profile, and Russia knows this. Paul Whelan, an ex-US Marine who has been imprisoned in Moscow on espionage charges since 2018, has speculated that he was detained because Russia wanted to exchange him for Viktor Bout, a notorious international arms dealer known as “the Sanctions Buster.” But Whelan alone, it seems, was not significant enough to be traded for Bout (inspiration for a film starring Nicolas Cage), whose capture and conviction were the result of many years of effort. Other potential candidates for a swap with Whelan included Maria Butina, the red-haired NRA enthusiast who was arrested in the US as a foreign agent in 2018 and deported to Russia the next year, and Konstantin Yaroshenko, who in 2011 was sentenced to twenty years for attempting to smuggle $100 million worth of cocaine into the United States. Indeed, another ex-Marine named Trevor Reed, charged with assaulting a Russian police officer in 2019, was swapped for Yaroshenko in April 2022.

In July, perhaps encouraged by the publicity success of the Reed-Yaroshenko swap, the US reportedly offered to exchange Griner and Whelan for Bout; negotiations are ongoing. The odd man out is an American teacher, Mark Fogel, who was sentenced in June to fourteen years for bringing about half an ounce of prescribed medical marijuana into Russia. He has not been designated as “wrongfully detained” by the State Department, nor has he been included in swap proposals. He wrote in a letter to his family that his exclusion “hurt,” protesting that “teachers are at least as important as bballers.”

Griner’s case bears little relation to the common understanding of drug smuggling—a few cannabis vape cartridges rather than cocaine by the kilo. But in Russia it is not unusual to receive major charges for the possession of minor quantities of drugs; Russia’s acquittal rate is less than 1 percent, being charged is virtually equivalent to a sentence. The Russian criminal code’s article on drug possession is sometimes called “the people’s statute” because it is responsible for the country’s largest share of criminal convictions; more than a quarter of Russian prisoners are incarcerated for drug possession. In many of these cases, the drugs are likely planted by police who want to meet arrest quotas or extort bribes. Anyone who even speaks about drugs—including in journalism or while providing public health information, particularly important in a country with an HIV epidemic that has been concentrated among injecting drug users—is liable to be charged with the dissemination of “narco-propaganda.” (Similar laws criminalize the discussion of homosexuality.)  

Griner did not deny that the cartridges in her luggage belonged to her. But for more than a decade, trumped-up drug charges have also been used for political ends, to persecute activists and others who have run afoul of the authorities. In 2019 Ivan Golunov, an investigative journalist for the independent outlet Meduza, was arrested by police who planted mephedrone and cocaine in his backpack. His colleagues and friends helped organize a well-publicized protest against his arrest, and he was eventually released; in an unusual reversal, the officers who arrested him were charged, convicted, and sentenced to years in prison. Perhaps they displeased higher-ups by attracting undue attention to their small-time crimes, or perhaps those who ordered Golunov’s arrest were disconcerted by the attention it attracted.

Griner was in Russia because the WNBA pays its athletes strikingly little in comparison to the NBA, and even star players tend to supplement their income by playing abroad during the off-season. Her WNBA contract pays $665,000 for three years. On UMMC Ekaterinburg, a Russian team that competes in the Russian Premier League and, before the invasion of Ukraine, in EuroLeague Women, Griner earned a reported $1 million a year. This has raised uncomfortable questions about whether Russia values women athletes more than the United States does; it’s hard not to notice that Griner, one of the most decorated female basketball players in the world, has become a household name in the United States not for her athletic achievement but for her political misfortune. But the optics of giving American athletes lavish treatment in Russia may have helped explain UMMC Ekaterinburg’s exceptionally high salaries and extravagant perks: a small step in post-Soviet Russia’s strenuous efforts to prove that it can still compete with the United States as an equal, and even surpass it.

The question of pay equity for women is one of several sensitive topics raised by Griner’s case. What were the odds that, of all the people moving through Sheremetyevo airport, she would be the one caught with a paltry quantity of drugs? Was she targeted because of her race and gender as well as her celebrity and nationality? The most bizarre recent arrest of a foreigner in Russia was of another Black woman, the Zambian student Tionge Ziba, charged in April with “rehabilitating Nazism” for posting an Instagram video of herself twerking near a World War II memorial in Khanty-Mansiysk. Ziba faces up to three years in prison. People of color are routinely targeted by Russian law enforcement—but in Griner’s case, American racial politics may be more relevant than Russian ones.

A Black woman unjustly incarcerated on drug charges evokes bitter memories of recent and ongoing events on American soil. Some commentators have suggested that it is ironic to see Biden intervene to rescue a Black woman incarcerated on drug charges when so many are incarcerated for drug offenses at home, or otherwise victimized by law enforcement. Griner participated in the Black Lives Matter movement: in 2020 she wore Breonna Taylor’s name on her jersey, and, with her teammates, walked off the court during the national anthem. “I honestly feel we should not play the national anthem during our season,” she told an interviewer.

Some right-wing commentators pounced on this history, joking online that at least Griner would not have to hear the national anthem for nine years. Breitbart noted sarcastically that “WNBA star Brittney Griner has been one of the league’s most outspoken players when it comes to protesting the national anthem, even as she makes patriotic appeals for the US to arrange her release from a Russian prison sentence.” Russia found a hostage who is not merely a celebrity, but whose incarceration hits a remarkable number of nerves in the American body politic. Controversy generates publicity and publicity increases the likelihood of a prisoner swap, at the unlikely intersection of Black Lives Matter and international arms smuggling.