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Greiner’s arrest will force the US to make adjustments to US laws

Marc M. Howard

The arrest of WNBA star Brittney Griner in Russia on charges of smuggling and possession of hash oil has stoked US diplomatic tensions with Moscow and heightened international criticism of Russia’s authoritarian regime. Greiner testified in court this week that when she was arrested in Moscow on February 17, her rights were not read to her, as required by Russian law. “I had no intention of breaking the law,” said Greiner, who was taken into custody after Russian customs officers at the airport found two cannabis e-cigarette cartridges in her luggage.

Whatever the outcome of U.S. authorities’ efforts to secure Greiner’s release, it is clear that the case of the basketball player who claims to have been prescribed hash oil by a doctor is not being properly handled. Many have been sharply critical of Greiner’s arrest, pointing out that Russia has “draconian” drug laws and that there are more people in Russian prisons for drugs (per capita) than in any European country. Rep. Colin Allred, for example, noted that Russia’s penal system is “very different from ours and very opaque.”

Still, Americans shouldn’t be throwing stones. The dire situation Greiner finds herself in gives us reason to carefully analyze the attitude of the American legal system to drug-related crimes – and to the tens of thousands of people languishing in American prisons for such crimes.

Despite spending $182 billion in American taxpayers annually to keep vast numbers of people in prison, our criminal justice system falls far short of our country’s ideals. The problems of the American system are excessive prosecution, excessive sentences, harsh prison conditions, lack of opportunities for rehabilitation, and limited opportunities to return to normal life after release.

Consider recreational use of marijuana, which has been legal in 19 US states and decriminalized in 18 more. It remains illegal in Texas, and under federal law, and marijuana is illegal to ship between states. Like marijuana, hashish, the substance found in Greiner’s luggage, comes from the cannabis plant, only it’s much more potent. Hashish-related offenses are often punished more severely by US courts than marijuana-related offenses. And even in those states where marijuana is already decriminalized, changes in the law do not yet apply to cannabis concentrates.

More importantly, the wave of legalization did not affect the fate of those people who were found guilty under previous laws that made possession of marijuana a crime. Unlike most other countries, including Russia, in the United States, changes in the law do not apply to those people who were convicted under previous laws. According to a 2020 report from the American Civil Liberties Union, marijuana possession was the most common arrest in the United States (compared to the number of arrests for possession and distribution of other drugs). In 2018, the latest year for which the union’s experts analyzed the data, police made almost 700,000 arrests for possession of marijuana – more than the number of arrests for all violent crimes combined. Nearly a quarter of a million Americans are incarcerated for drug-related offenses, according to 2020 Bureau of Justice Statistics: about 171,300 are in state prisons (about 14% of state prisons), and 67,438 people are in federal prisons (46.7% of the total number of prisoners in federal prisons).

Russian prosecutors allege that the 0.702 grams of cannabis found in Greiner’s e-cigarette cartridges is a significant amount of a drug, which is why the basketball player is charged with “large-scale possession of narcotic drugs”, which threatens with a prison sentence of up to 10 years. As cruel as this punishment may seem to us, any sane person understands that this is a very small amount of the drug, and Greiner told the court on Wednesday that she needed hash oil to alleviate pain and inflammation, which are the result of numerous injuries she received for sports career – it is worth noting that the American criminal system can be no less severe. The distinction between “use” and “distribution” usually hinges on highly arbitrary “weight thresholds” that US prosecutors apply quite selectively, resulting in shockingly long sentences for many Americans. Some 46,700 people in state prisons have been convicted of possession. But that’s only part of the picture, because other inmates who simply “stole” the drugs were found guilty of “smuggling and distributing” based on the amount of marijuana they found.

The number of people incarcerated in American prisons for drug-related crimes has long outnumbered those imprisoned on the same charges in other Western democracies for a long time. In 2000, in the United States, 70% of possession charges and 74% of drug distribution charges resulted in prison sentences, while in Germany the figures were 8% and 21%, respectively.

Many of those concerned about Greiner’s fate are concerned about the conditions in Russian prisons. However, in this sense, our country also has nothing to boast of. According to many reports, American prisons are overcrowded and understaffed, and the people in them are suffering from violence, malnutrition, poor quality medical care and other problems.

While many have seized on Greiner’s story to once again criticize Russia’s brutal drug laws, we must not forget our own practices in this area. Congress and state legislatures could take a big step forward by making drug legalization laws retroactive, allowing early release of tens of thousands of Americans in prison for acts that are no longer illegal in most states.

President Biden and the governors of all 50 states must also act immediately to expedite the process of considering amnesty petitions from people who, like Greiner, deserve freedom. Given her background in active civic work and support for criminal law reform, Greiner would no doubt agree.

Mark Howard is Professor of Public Administration and Law at Georgetown University, where he leads the Prisons and Justice Initiative. He is also the founder of the Frederick Douglass Project for Justice and the author of Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism.

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