Marc M. Howard is a professor of government and law at Georgetown University, where he directs the Prisons and Justice Initiative. He is the author of “Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism.”
Whatever the outcome of U.S. efforts to secure Griner’s release, it’s clear that Griner, who says she was prescribed cannabis oil by a doctor, has not received due process. While rightly condemning Griner’s detention, many have cited Russia’s “draconian” drug laws and its imprisonment of “more people per capita for drug crimes compared with the rest of Europe.” Rep. Colin Allred (D-Tex.), for instance, has said the Russian criminal system “is very different than ours and is very opaque.”
But Americans should hardly throw stones. Griner’s ordeal gives reason to scrutinize the U.S. legal system’s treatment of drug offenses — and the tens of thousands of people languishing in American prisons for such crimes.
Despite $182 billion in annual taxpayer funding for mass incarceration, the criminal legal system in this country falls far short of our nation’s ideals. The U.S. system is plagued by over-prosecution, excessive sentencing, brutal prison conditions, lack of rehabilitation opportunities and limited reentry prospects.
Consider recreational marijuana, which has been legalized in 19 states and decriminalized in 18 others. It remains illegal in Allred’s Texas as well as under federal law, including in transportation between states. Hashish, the substance at issue in Griner’s detention, comes from the cannabis plant, as does marijuana, but is significantly more potent. Hashish-related offenses have often been punished more severely by U.S. courts. And even in states where marijuana has been decriminalized, the changes sometimes do not extend to cannabis concentrates.
Critically, the legalization wave has not benefited people who were convicted under previous laws that criminalized marijuana. Unlike most other countries, including Russia, the United States does not allow changes in laws to benefit people who were previously punished under the old laws. A 2020 ACLU report found that marijuana arrests account for more drug arrests in the United States than any other drug class; in 2018, the last year for which the report analyzed data, law enforcement made nearly 700,000 marijuana arrests, more than for all violent crimes combined as reported by the FBI. According to 2020 data from the Bureau of Justice Statistics, nearly a quarter-million Americans are behind bars for drugs: Some 171,300 people are incarcerated in state prisons for drug-related offenses (14 percent of the total number of state prisoners) and 67,438 in federal prisons (46.7 percent of all those in federal prisons).
Russian prosecutors argue that the 0.702 grams of cannabis reportedly found in the vape cartridges in Griner’s baggage constitutes a “significant” amount and have charged her with “large scale transportation of drugs,” which can carry a prison sentence of up to 10 years. However outrageous the charges sound — to any reasonable mind, the quantity was quite small, and Griner testified on Wednesday that she needed the oil to help with pain and inflammation of injuries sustained over her career — it’s worth noting that U.S. prosecutions can be similarly harsh. The distinction between “using” and “dealing” usually depends on arbitrary weight thresholds that are selectively applied by prosecutors, leading many Americans to receive shockingly long sentences. Some 46,700 people in state incarceration were convicted of possession. But that is only part of the story, as some of the others incarcerated were in possession of drugs but found their charges elevated to “trafficking and dealing” because of the amount of marijuana present.
U.S. incarceration rates for drug offenses have long exceeded those of other Western democracies. In 2000, 70 percent of drug possession and 74 percent of drug-dealing convictions in the United States resulted in incarceration, compared with just 8 percent and 21 percent in Germany that year.
Many concerned about Griner’s ordeal worry about prison conditions in Russia. Here, too, our country has little to gloat about: Numerous reports have found U.S. prisons to be overcrowded and understaffed, with the incarcerated exposed to violence, malnutrition, and other environmental and health issues.
While many seize on Griner’s incarceration to criticize Russia’s harsh drug laws, U.S. practices should not be ignored. Congress and state legislatures could take a major step forward by making drug legalization laws retroactive, such that they would allow for the early release of the tens of thousands of Americans who remain locked up for behavior that most states — and most Americans — no longer consider to be criminal.
President Biden and all 50 state governors should also take immediate action on the countless clemency petitions awaiting review from people who deserve to be free as much as Griner does. Given her history of social activism and support for criminal legal reform, surely Griner herself would agree.