On Prisoner Swaps, Justice, and the Founding Fathers

Although the cases and circumstances could not be more different, the US is pursuing a prisoner swap involving American Brittney Griner and Russian arms trafficker Viktor Bout. For his crimes against humanity, Bout is serving a twenty-five-year sentence in the US. He supplied terrorist organizations that committed horrific atrocities in numerous countries. Ms. Griner is a professional basketball player. Arrested, convicted, and sentenced to a nine-year prison term in Moscow for possessing illegal vape cartridges.


Authoritarians have ruled Russia for more than five centuries, including when Benjamin Franklin was considering the nature of justice. He wrote: “It is better one hundred guilty Persons should escape than one innocent Person should suffer.” Another Founding Father, John Adams, said something similar: “It is more important that innocence should be protected, than it is that guilt should be punished.”


I think about the American ideal of justice, the value of the individual and our duty to the innocent, when I write about the Soviet Union, about Stalin and World War II. Stalin’s view was the opposite of Franklin’s. He believed it far better that untold innocents should suffer than one guilty person go free. This mindset saw the Soviet leader through collectivization, the purges of the 1930s, through World War II and beyond. He sacrificed his people on the altars of power, modernization, and fear. He punished hundreds of thousands of innocents in an effort to root out the guilty few.


Of all his brutalities, Stalin’s treatment of Soviet prisoners of war in World War II might have been the cruelest. They were executed or imprisoned by the thousands upon returning home. No ticker-tape parades, no medals, just a bullet through the head or off to Siberia. Stalin believed soldiers who had been imprisoned in German camps were traitors or spies or both. Best they should all die, lest one actual traitor escape.


Despite its brief flirtation with democratic ideals in the 1990s, Russia today has much more in common with Stalin than with democracy. It is again a place where the truth is repressed, information is controlled, where you can be arrested for voicing an opinion contrary to state policy. If you annoy, challenge, or threaten Putin sufficiently, you can be murdered like Boris Nemtsov, or poisoned like Alexei Navalny. If the poisoning isn’t fatal, you can be imprisoned on fake charges and falsely convicted.


There are reasonable people who say the trade is wrong. Releasing a convicted terrorist is a terrible precedent. Russia and other bad actors will be encouraged and emboldened. I don’t disagree with such arguments. The idea of exchanging someone as heinous as Bout is nausea-inducing at best. He is responsible for thousands and thousands of deaths. Others, who favor the swap, say he has served a large part of his sentence. Although true, that doesn’t make him deserving of freedom. He may no longer pose much of a threat—long removed from the terrorist business, his network is gone and he is an old man in a young lions’ world. But whether he is a threat or not is beyond the point. Justice demands Bout remain in prison. Or does it?


It all depends what we believe about the nature of justice. Which brings me back to Franklin, for whom justice was more complicated than punishing the guilty. It was, and still is, about protecting the innocent. And an innocent like Brittney Griner should not suffer simply to prevent a guilty person like Viktor Bout from being set free. As painful as the swap may be, Benjamin Franklin would be proud.

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