The news Friday that WNBA star Brittney Griner would be detained in Russia for at least another month made clear that the American athlete's best bid to return home anytime soon would be through diplomatic negotiations and not the legal system, former U.S. State Department officials and Russian legal experts say.
If Griner is convicted on drug possession charges, she could be locked up for at least five years with a maximum of 10 years — and prison time is all but guaranteed, said William E. Butler, the author of "Russian Law and Legal Institutions" and a professor at Penn State Dickinson Law.
Russia's criminal code can allow a court to impose a less than the minimum sentence, Butler said, but lawyers must give a persuasive argument.
Similar to the U.S., Russia's legal system grants a presumption of innocence, and so Russian authorities would have to prove their case at trial.
There is also the possibility of a plea deal, but that would not be to Griner's advantage, Butler said, because defendants are still required to serve one-half to two-thirds of the maximum sentence.
WNBA Season starts with Brittney Griner remains still in RussiaMay 7, 202200:30
Russian drug laws are widely considered draconian and the country imprisons more people per capita for drug crimes compared with the rest of Europe, according to The Moscow Times. Marijuana remains illegal for recreational and medical purposes.
"They're a zero-tolerance jurisdiction," Butler said. "It's something you don't want to mess with. People have been carrying prescription medications and gotten caught up in these laws."
Griner, 31, has been held on drug smuggling charges since February when she was found in Moscow's airport allegedly possessing cannabis-derived vape cartridges. A request by her lawyers to be placed on house arrest was denied in March.
It's not unusual for courts in Russia to drag out a pre-trial detainment.
But no public statements have been made by Griner and it's unclear what she makes of the accusations or what she says were the circumstances surrounding her arrest. Butler said the silence may be a legal strategy, although Russia's criminal code also limits the ways in which the accused can speak publicly about open investigations.
Her attorney told the media on Friday that she has not expressed "any complaints about the detention conditions." During her court hearing outside of Moscow, Griner was photographed wearing a hoodie, with her head down and her face shielded by her hair.
The Kremlin certainly knows Griner — a two-time Olympic gold medalist and powerhouse player on the Phoenix Mercury — is no ordinary American detainee, and so they likely view her as a potential bargaining chip for when the time is right, said David Salvo, deputy director of the Alliance for Securing Democracy, a nonpartisan organization seeking to protect democratic institutions.
"They're going to try and horse trade," Salvo, a former diplomat at the State Department who had worked in Russia, said. "It's sad to be playing with someone's life as a pawn."
Griner's family is getting help from former U.S. Ambassador to the United Nations Bill Richardson, who has also worked as an international hostage negotiator. A spokesman for Richardson's diplomacy efforts said Friday that his team continues to "work on behalf of Brittney's family to secure her safe return home."
Behind the scenes, the backchannel talks will be crucial if Griner is to be released either before trial or if she's convicted — but it will be up to whether the Russians want to negotiate and what they'd offer, Salvo said.
Last month, in a surprise turn, Russia released American prisoner Trevor Reed, a former Marine who was arrested in 2019 and accused of assaulting police after a night of heavy drinking, in exchange for President Joe Biden commuting the sentence of Konstantin Yaroshenko, a convicted Russian drug trafficker serving time in Connecticut. Reed, who was sentenced to nine years in prison, has maintained his innocence.
Russia would have a list of other nationals in custody in the U.S. whom they'd like to see returned. Experts say among them would be Viktor Bout, an international arms dealer dubbed the Merchant of Death who was sentenced to 25 years in prison in 2011 for conspiring to sell weapons to rebels in Colombia.
The most recent prisoner swap "raised hopes that maybe the Russians wanted to show they're problem solvers," said Stephen Sestanovich, a professor of international diplomacy at Columbia University who served as the State Department's senior official overseeing policy toward Russia from 1997 to 2001.
But trying to free a person like Griner could have an unintended effect, he added, with Russia making targets out of Americans whom Moscow might consider valuable assets.
"The U.S. government has to ask itself: Do we want to trade a really bad dude like Bout for a good person like Griner who probably made a dumb mistake?" Sestanovich said. "To get to yes here, you have to convince the people who say you'll only encourage the Russians to arrest more people like Griner.”
Earlier this month, the State Department said Griner is being "wrongfully detained by the Russian government," an official classification that means the special presidential envoy for hostage affairs, working in coordination with the State Department, can be more aggressive in its efforts to secure her release.
A consular officer from the U.S. Embassy in Moscow spoke to Griner on Friday while at her hearing, said State Department spokesman Ned Price, who told reporters that Griner is "doing as well as can be expected under what can only be described as exceedingly difficult circumstances."
But since her arrest, the U.S. Embassy has only been granted access to Griner once, and all other requests were denied.
"The State Department can't storm the Russian prison to bring her home," Salvo said. "I have no doubt the department is doing everything they possibly can to make sure they have access to her."
Griner's wife, fellow WNBA players and the league have shown their solidarity with Griner on social media. The league said in a statement Friday that "today's news on Brittney Griner was not unexpected, and the WNBA continues to work with the U.S. government to get BG home safely and as soon as possible."
Salvo said loved ones of people being detained overseas in countries such as Russia have to be prudent in what they say publicly — particularly when there's still hope they can be freed.
"There's a delicate dance their families have to do with trying to raise attention with the State Department and Congress while not wanting to inflame Russia," Salvo said. "Especially in the case of Brittney, you have the eyes of Kremlin watching."