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Brittney Griner Is in Serious Trouble

There will be no justice for Brittney Griner in Russia.
There will be no justice for Brittney Griner in Russia. (Photographer: Mike Mattina/Getty Images)

Like so much else in these difficult days, the fate of Brittney Griner rests in the hands of Russian President Vladimir Putin. The Women’s National Basketball Association superstar was arrested at a Moscow airport sometime in February on drug charges. News reports suggest quiet negotiations seeking her release. But given that Russia’s criminal justice system is ordered according to Putin’s whim, we should consider the possibility that he will use her as a bargaining chip, and, by doing so, reenact one of the cruelest episodes of the Cold War.

The fact that an American was arrested in Moscow isn’t unusual. Over 20,000 foreigners are convicted of felonies in Russia every year. About 10% are women. Nevertheless, given the strange secrecy that shrouded Griner’s detention — Russian authorities have yet to say how long she’s been in custody — one cannot help hearing the echoes of history.

Toward the end of 1944, as World War II was winding down, the Red Army pressed into Polish and Romanian territory that had been held by the Nazis. The Soviet Union suddenly had responsibility for millions of people who had previously been outside its borders. Among them were several thousand American servicemen taken prisoner by German forces.

The U.S. expected swift repatriation. But as historians have long noted, the Soviets decided instead to use the POWs as bargaining chips. At first, Russia denied that it had inherited any American prisoners at all. Even after admitting that the POWs indeed existed, Soviet officials refused to send them home. At one point, a pair of U.S. officers were allowed to visit a prison camp in Poland where many were being held — and then were themselves refused permission to leave the country. Not until the end of the war did the Soviets agree to return the POWs to the United States.

In effect, the U.S. soldiers were hostages. A principal Soviet motive was ensuring the return of all their POWs formerly held by the Germans and now in Allied hands. The trouble was that thousands of captured Russian soldiers didn’t want to go home, not least because Stalin had decided to treat being taken prisoner as an offense. Determined to get its own people back, the U.S. undertook a policy of forced repatriation, sending Soviet prisoners of war back to the U.S.S.R. Rather than return, many — some say hundreds — took their own lives.

A similar issue arose over the status of American-born citizens, men and women alike, who happened to be living in territory occupied by Soviet forces during the war. The Soviets announced that they were all now citizens of the U.S.S.R., and U.S. demands for repatriation were met with contempt. Soviet citizens could not lose their citizenship, wrote the assistant commissar for foreign affairs, “merely by force of the fact of their birth on American territory.” Those who continued to insist that they weren’t Soviets were harassed and often arrested for parasitism and other crimes. Several hundred were sent to labor camps in the gulag.

Some observers connect the Soviet reluctance to send Americans home to the start of the Cold War. Maybe they’re right; it certainly sparked public outrage. What’s striking as we look back is the ability of the Soviet leadership to shrug off the world’s response. Stalin was determined to use detained U.S. citizens as bargaining chips, and, to a large extent, he succeeded.

As a result of Russia’s brutal aggression in Ukraine, relations with the U.S. are at their lowest point since those Cold War days. Putin gives every sign of sharing the view of his Communist predecessors that human beings exist to be sacrificed to his goals. For Griner and other Americans caught up in Russia’s justice system, the risk of being treated like those the Soviets refused to repatriate after World War II is frighteningly real. One can scarcely imagine the fear and devastation Griner’s  friends and loved ones are enduring.

Even in more normal times, the odds against Griner would be daunting. We do not have enough facts to say whether she did as Russia claims, but we can predict with confidence that if she goes to trial, Griner will be found guilty ... even if she’s innocent. The felony conviction rate in Russian courts is over 99%. It’s true that many cases are dismissed before trial, but these heavily reflect settlements between perpetrator and victim – an option not applicable in drug cases. And even though since 2001 Russian law has permitted plea agreements, sentences based on those deals can still be harsh. Suspended sentences are largely reserved for those who have been charged but not detained.

Again, that’s in normal times — which these aren’t.  

Unless higher authority intervenes, it’s tough to imagine a Russian judge or prosecutor giving a U.S. citizen, even one as prominent as Griner, anything but the harshest treatment. On the other hand, the court would likely do exactly what Putin instructs. So even in this era of the new Cold War, the behind-the-scenes negotiations, if they’re real, provide some faint reason for hope. Let’s pray they succeed.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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