Photo Via: USA Today
Russian Customs officials detained WNBA star, Brittany Griner, for possessing vape cartridges containing hashish oil, that were found in her luggage
I. Overview
The geopolitical landscape of the world right now is fragile — to say the least. With war and destruction taking place in Ukraine after Russian President Vladmir Putin attacked its neighboring country, the world, in particular the U.S., is awaiting what seems to be the possible start of a third world conflict. The U.S. is taking steps to prevent confrontation and endangering its citizens, including the U.S. State Department urging U.S. citizens in Russia to leave the country immediately.[1]
The State Department cited the urgency, amongst other things, due to:[2]
(i) potential harassment against U.S. citizens by Russian government security officials;
(ii) the U.S. embassy’s limited ability to assist U.S. citizens in Russia;
(iii) Covid-19 restrictions;
(iv) terrorism;
(v) limited commercial flight options; and
(vi) arbitrary enforcement of local law.
With the State Departments warnings, U.S. corporations/businesses/etc., like the WNBA, are advising their employees/athletes/affiliates to leave Russia immediately. The State Department’s warning further states:
“Russian security services have arrested U.S. citizens on spurious charges, denied them fair and transparent treatment, and have convicted them in secret trials and/or without presenting credible evidence,” and further stating, “Russian officials may unreasonably delay U.S. consular assistance to detained U.S. citizens.”
II. Background
WNBA players, unlike NBA players, are under a greater financial burden due to the salary disparity between the two leagues. This is not meant to discuss the differences in pay and the reasons for them, however, for reference, on average, WNBA players make an annual salary of $120,648.00 and NBA players make an annual salary of $7.9 million. Due to the desire to maximize their earning capacity as athletes, many WNBA players elect to play in outside professional basketball leagues, including the Russian Women’s Basketball Premier League. Female professional basketball players earn up to $1.5 million a season in Russia and only $221,450.00 in the WNBA.
The WNBA is well aware of its athletes playing in alternative leagues during its offseason — including in Russia — and the league recently released a statement regarding any WNBA athletes in Russia:[3]
“We have been in constant communication with our members and their representatives for several weeks, and we’ll continue to stay abreast of current events. We are the union for the 144 all year round, and their safety is the highest concern. We shared information and advisories from credible news sources and urged them to make a plan that included connecting with embassies/consulates and the U.S. State Department’s SMART traveler program.”
The culmination of these events has led to the instant case of Griner — current WNBA center for the Phoenix Mercury. Russian customs officials detained Griner at the Sheremetyevo airport near Moscow for possessing vape cartridges containing hashish oil that were found in her luggage.[4]
Griner’s agent, Lindsay Kagawa Colas, released a statement concerning Griner’s detention:[5]
“We are aware of the situation with Brittney Griner in Russia and are in close contact with her, her legal representation in Russia, her family, her teams and the WNBA and NBA.”
Further, Griner’s Wife, Cherelle T. Griner, made a statement on Instagram, saying:[6]
“Thank you to everyone who has reached out to me regarding my wife’s safe return from Russia. Your prayers and support are greatly appreciated. I love my wife wholeheartedly, so this message comes during one of the weakest moments of my life. I understand that many of you have grown to love BG over the years and have concerns and want details. Please honor our privacy as we continue to work on getting my wife home safely. Thank you.”
Griner’s detention comes at a difficult time. With world tensions brewing, it is concerning to have a notable U.S. citizen in Russian custody. Unfortunately for Griner, she will likely be the subject of intercountry conflict negotiations. Even more unfortunate for Griner, security footage released from the Sheremetyevo airport depicts what appears to be Griner and her luggage being searched, with Russian security officials ultimately finding the alleged hashish oil vape cartridges.
Hopefully, Griner will have a fair opportunity to go through a just legal process. However, two urgencies cited by the State Department apply, potential harassment against U.S. citizens by Russian government security officials and arbitrary enforcement of local law.
III. Russian Illegal Substance Law
To comprehend the legal process Griner will inevitably be experiencing, it is important to understand Russian law and the legality of substances such as hashish oil vape cartridges.
Hashish oil is, “a concentrated cannabis extract that can be smoked, vaped, eaten, or rubbed onto the skin. [It] comes from cannabis plants and contains THC (delta-9-tetrahydrocannabinol), the same active ingredient as other marijuana products. But hash oil is more potent, containing up to 90 percent THC. By contrast, in other cannabis plant products, the average THC level is approximately 12 percent.”[7]
In Russia, cannabis products — including hashish oil — are strictly prohibited. This includes both medical and recreational use. Cannabis is included in “List 1” of the narcotic and psychoactive substances — all List 1 narcotics are under the strictest Russian government control.[8] However, Russian law permits the government to repurpose List 1 drugs into alternative substances. This includes (i) narcotic and psychoactive substances used for medical or veterinary purposes; or (ii) non-narcotic substances.[9] Nonetheless, Griner does not fall under the latter categories and will be subject to Article 228.1 of the Russian Criminal Code.
Article 228.1 concerns, “Illegal Acquisition, Storage, Transportation, Making or Processing of Narcotic Drugs, Psychotropic Substances or Analogues Thereof.”[10] The law provides in pertinent part, acquisition of an illegal substance (in this case, hash oil), without intent to sell will be punishable for:
(i) a fine of up to $370.00 USD;
(ii) garnished wages for up to three months;
(iii) corrective labor for a term of up to two years; or
(iv) imprisonment for up to three years.
The same holds true for “acquisitions of a large-scale,” which the law defines as, “the average one-time consumption dose by 10 or more times, and an especially large scale – by 50 and more times.” However, the penalties for acquisitions of a large-scale are much stronger and will be punishable for:
(i) a fine up to $4,695.00 USD;
(ii) garnished wages for up to three years; or
(iii) imprisonment for up to ten years.
In the case of Griner, the Russian Federal Custom Service said it opened a criminal case under the large-scale transportation standard. Therefore, if Griner is found guilty, she could be sentenced to up to 10 years in a Russian prison.
IV. Outlook
The Russian criminal court process is analogous in many respects to the U.S. federal criminal justice system. All trials in Russia must be governed by centralized Russian law. In the case of Griner, the case will be governed by Article 228.1 of the Russian Criminal Code.
If Griner is provided with a fair trial, Griner will likely face an uphill battle. In the U.S., common defenses against drug possession are: (i) claiming the drugs belong to someone else; (ii) asserting unlawful search and seizure; (iii) showing she was a victim of entrapment; (iv) an exception; and (iv) forcing the prosecution to prove the alleged illicit substance is “actually a drug.”
However, because Russian law is explicit in the illegality of substances such as hashish oil, it is unlikely Griner can claim exception and Article 3 of the Russian Criminal Code states that foreign citizens are subject to its laws. Further, it is unlikely — given the strict stance Russian law has on illegal substances — that the hashish oil will be determined as “not an actual drug.”
Griner’s best chance is to plead: (i) the drugs do not belong to her; (ii) unlawful search and seizure; or (iii) she was a victim of entrapment. All three defenses will be difficult to establish because the hashish oil was found in her luggage, Russian Criminal Code permits search and seizure under Chapter 25, and entrapment is a rather tough defense to prove. Given the totality of circumstances, Griner will move to settle and pay any applicable fines and/or penalties. Griner will need to hope she is not being used as a pawn for the geopolitical disputes going on in the world today. If she is, this is sadly only the beginning for Griner.
[1] https://www.npr.org/2022/03/05/1084762582/russia-ukraine-state-department-travel-advisory
[2] https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/russia-travel-advisory.html
[3] https://sports.yahoo.com/wnba-players-in-russia-planning-to-leave-as-flights-dwindle-after-ukraine-invasion-151041518.html
[4] https://www.nytimes.com/2022/03/05/sports/basketball/russia-brittney-griner.html
[5] Id.
[6] https://www.instagram.com/p/CavgToGuCVn/?utm_source=ig_embed&ig_rid=a4a57d67-f49e-4529-aeb2-bf3450066e7a
[7] https://www.healthline.com/health/hash-oil
[8] https://cms.law/en/int/expert-guides/cms-expert-guide-to-a-legal-roadmap-to-cannabis/russia
[9] Id.
[10] https://www.imolin.org/doc/amlid/Russian_Federation_Criminal_Code.pdf
Leave a Reply