But Britney’s a Special Case

Britney Griner was benefited in more ways than one by the extraordinary prisoner exchange with Russia. Russia and the US do not have a prisoner transfer treaty. The US does have such a treaty with 11 countries and is a signatory to two multilateral international conventions¹. The terms of these treaties are all the same: upon transfer, a prisoner is not automatically freed. Instead, the prisoner is to serve the remainder of his sentence in the prisons of the receiving country. The receiving country’s parole rules, however, would apply.

When these treaties were negotiated, federal parole still existed, but parole was abolished under the Sentencing Reform Act of 1984. Since then, federal prisoners must serve their complete sentence, with 55 days granted each year for good behavior. A transferred federal prisoner still has to serve 85% of his sentence upon return to the United States.

If there had been a prisoner exchange treaty between the US and Russia, Griner would still have the bulk of her sentence to serve in the custody of the Bureau of Prisons. Assuming good behavior, she would be freed in 7 ½ years.

A life sentence imposed overseas means life in America. For many prisoners, the idea of returning to the US for confinement is unthinkable: with permitted conjugal visits, in many cases foreign prisons are more humane than American ones. Parole eligibility, amnesty and more frequent pardons are all reasons not to come home.

Despite the existence of a valid prisoner exchange treaty between the United States and Peru, that treaty was never invoked in favor of Lori Berenson, convicted in 1996 of terrorist offenses and originally sentenced to life. Although her sentence was later reduced to twenty years, Berenson did not seek transfer to the United States under the treaty. Instead she remained in Peru and had a child with her husband. Returning to the United States would have meant incarceration without parole. Berenson thus remained in Peru.²

Britney Griner got special treatment indeed. I’m not sure she realizes just how special her treatment was.