The release from Russian prison of WNBA star Brittney Griner has been greeted with general delight in the United States.

Announcing the deal that saw her freed on Dec. 8, 2022, President Joe Biden lauded the “painstaking and intense negotiations” that made it happen. Others may have legitimate concerns over the equivalence of the exchange, which saw convicted arms merchant Viktor Bout returned to Russia.

As a longtime scholar of Russian law, I believe the episode prompts a reflection on the application of Russian law in Griner’s case, and more broadly consideration about such exchanges in general.

The problem American negotiators face in such situations is that it matters whether the U.S. citizen is guilty of committing the crime alleged under foreign law or whether there has been a miscarriage of justice, incompetent investigation or prosecution, or false accusation.

And from this perspective, the Griner case was difficult.

A question of ‘direct intent’

Griner has yet to give a full account of her story, but the available facts suggest that she legally acquired in the U.S., probably in Arizona or California where she is based, vaping cartridges containing hashish oil upon a physician’s recommendation, but not prescription. She then, probably illegally under federal law, carried them across state lines to New York, where vaping cartridges are sold but cannot be carried to states where they are not legal.

From there, the question becomes a classic law school examination issue: Did Griner violate zero-tolerance Russian legislation on narcotics when she boarded a Russian aircraft in New York – unless, of course, she flew Delta as the only U.S. carrier that goes direct?

Or was the law broken when that aircraft entered Russian airspace, or touched down in Moscow? Or perhaps it was when passengers disembarked at Sheremetevo airport, when Griner passed through passport control; or when the basketball star chose the green customs channel at the airport instead of declaring what she had in the red channel and was found out by a sniffer dog policing the green channel. These were all possibilities, but the green channel was incontrovertible.