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Rappers Keep Getting Locked Up Over Their Lyrics. Could a New Law Change That?

VICE US
Drew Schwartz
2022-08-04
https://www.vice.com/en_us/article/y3ppjy/rap-act-bill-bans-lyrics-as-evidence-congress-legislation

For decades, prosecutors have been using rappers’ lyrics against them in court, convincing judges and juries that their music should be considered evidence, not art. It’s an argument a number of high-profile musicians have had to fend off, including Lil Boosie, Drakeo the Ruler, and, more recently, Young Thug and Gunna, who are currently facing up to 20 years in prison on charges based, in part, on the content of their songs. Last week, a pair of legislators introduced a bill that would tamp down on that practice, a major step in a campaign First Amendment attorneys and racial justice activists have been waging for years.

The RAP Act, introduced by two House Democrats, Georgia’s Hank Johnson and New York’s Jamaal Bowman, seeks to limit lyrics from being used as evidence in criminal and civil trials. It would amend the rules governing how evidence is used in federal court to prohibit that legal tactic, at least in large part. The bill contains a few exceptions: Prosecutors could still use lyrics against a defendant if they “intended a literal meaning,” and if a given lyric “refers to the specific facts of the crime alleged”; is “relevant to an issue of fact that is disputed”; and “has distinct probative value not provided by other admissible evidence,” which, in other words, means it’s necessary to prove a fact, and there’s no other way to prove that fact.

To get a better handle on what would happen if the RAP Act became law, VICE called up Erik Nielson, a University of Richmond professor who co-authored Rap on Trial, a book about what happens when rappers’ lyrics are used against them in court. He walked us through how pervasive this practice is in the criminal justice system, and how far the RAP Act could go toward changing that. 

VICE: On a big picture level, what’s problematic about using an artist’s lyrics against them in court?

Erik Nielson: We’re not seeing lyrics from other genres being used against artists. It really is almost exclusively focused on rap music and rap musicians. And I think it’s problematic at a number of levels. For one, it denies rap music the status of art that we willingly give to other fictional genres. I think more important than that, though, is it allows prosecutors to attain convictions in cases where they may not have much in the way of other evidence. I’ve worked on so many cases [in which rap lyrics are used as evidence], and I have not yet seen a case where I believed what I was reading was somebody’s confession to a crime that had happened, or their plan to commit the crime that they were accused of. 

Unless I’m just missing those obvious cases, I would say by and large, rap lyrics really don’t have a place in the courtroom. I mean, it’s a fictional form. That’s not to say fiction can’t contain threads of reality; fiction always works like that. But [rap] is fictional. It privileges figurative over literal language. It’s got a long tradition of hyperbole behind it. It’s told by somebody who’s generally not even using their real name, but is using the name of their invented persona. This is the basic distinction between author and narrator that we have no trouble applying to all other fictional forms. But all of a sudden with rap, it’s all autobiography? That doesn’t make any sense to me. And so I think that given that [rap] is inherently unreliable as literal fact, I find it unlikely that there would be many scenarios in which using it as evidence would be appropriate.

You mentioned that lyrics are really only being used against defendants who make rap music. Why is that?

Well, because that’s what the criminal justice system is built to do. It’s built to punish and incarcerate, en masse, Black and Brown young men. It’s also happening because it works. We’ve seen this time and time again where prosecutors bring a case against somebody, the evidence is flimsy at best, and they use these lyrics in order to get a conviction that they otherwise probably wouldn’t have gotten. If a defendant is convicted in a case where his lyrics are being used against him—and I say “his” because it’s almost all young men—and he appeals later on and says, “Hey, that was improper, that shouldn’t have been allowed to happen,” the vast majority of times, that appeal will fall on deaf ears. So it works to secure convictions, and then at the appellate level, it’s generally upheld. So what incentive do prosecutors have to not bring these lyrics [up at trial]? Prosecutors know that if they can get these lyrics in, they’re more likely to get a conviction. And they know that on the back end, they’re not going to face reversals. 

Of all the defendants who have had their lyrics used against them in court, what portion are successful, big-name artists, and what portion are amateurs?

The overwhelming majority are young, aspiring artists and amateurs. Many of them do actually aspire to become professional musicians and artists. Others are just amateurs experimenting with a musical form that they like. There have been some higher-profile targets: Drakeo the Ruler, Young Thug, Lil Boosie. I know that there’s a lot of press now around the Young Thug and Gunna indictments, but the vast majority of these defendants are aspiring or amateur artists who, for the most part, lack the resources that somebody like Young Thug is going to have to mount a defense. And so they become easy prey. 

How common is it to see prosecutors use a defendant’s lyrics against them in court?

We’ve identified roughly 600 cases, but we know that it’s far, far greater than that. Rap lyrics are a really powerful tool that give prosecutors leverage early on in the process and can compel a plea bargain, which is what the vast majority of cases end with. We’re not going to see that if it’s happening behind closed doors in an interrogation room. 

It’s also commonplace to see [rap lyrics] in indictments, but we’re not going to see those because they’re generally sealed. If [lyrics] are being used against minors, we’re not going to see that because those records are typically sealed. Add to that the different ways that municipalities and states record their case information. In some, it’s easy to access; in others, it’s very difficult. So add that in, and it starts to become obvious that what we have been able to identify is really just the tip of an enormous iceberg. I’m reluctant to put numbers out there. It’s certainly thousands. 

And it’s happening at every stage of the criminal justice process. We refer to the phenomenon as “rap on trial.” But trials are only one place where you’re seeing this. [Lyrics] could motivate an investigation, or [determine] who gets charged. They’re used in indictments. They’re used at trial. They’re used at sentencing, in some cases. I’ve testified in a couple of death penalty cases—if someone’s found guilty of the crime, there’s a separate hearing to determine whether or not that person is executed—and the lyrics absolutely will come in then as well. 

I want to pivot to talking about the RAP Act itself. Could you spell out what this legislation is calling for, and what would happen if it became law?

The presumption, if this were to be enacted, would be that these lyrics can’t [be used against a defendant]. And if you want to overcome that presumption, you can. But you have to demonstrate several different things before [lyrics are] allowed in. So it really just turns the tables and places the burden on prosecutors to demonstrate why these lyrics are really appropriate and necessary as part of their case versus the current practice, which is almost as if it’s a given and defendants have to fight it. It doesn’t ban anything outright. It just limits the practice. 

What would it mean? Well, the RAP Act is federal. So that would apply to federal cases, but not the 50 states. Now, that’s still a big score. But in order for something like this to have a meaningful, widespread effect, you would need to see similar legislation passed at the state level as well. That’s not realistic for all 50 states. But I do think that if there was something like this at the federal level, and you get something in New York and California—these populous states where there are these cases—it would do a lot, hopefully, to limit the practice. I’m not sure how limiting it would actually be, and how it would play out with judges in courtrooms across the country. But it would certainly be a useful, significant first step.

The RAP Act contains a number of “exceptions” that were hard for me to parse. It stipulates that prosecutors can use lyrics as evidence if a defendant “intended a literal meaning”; if “the creative expression refers to the specific facts of the crime alleged”; if “the expression is relevant to an issue of fact that is disputed”; and if “the expression has distinct probative value not provided by other admissible evidence.” Could you walk me through what those mean, in layman’s terms? 

I think the language is trying to get at the various ways that prosecutors traditionally have used these lyrics. And I think, short of an outright ban, it’s pretty thoughtful. I’m not sure how effective it will be. But I think that’s what those caveats are: Added layers in order to [bolster] the presumption of inadmissibility, which is responding to how prosecutors have in the past justified the use of these lyrics.

The key one there is that [the lyric] has to have a close nexus to the alleged crime. So the details have to map in a significant way. That test has already been used in some jurisdictions, like New Jersey. But what constitutes a close nexus to the crime? If there was a shooting and you rap about shooting, is that close enough? How about if the shooting happened with a nine millimeter and you have a song that involves a nine millimeter—is that close enough? What if it’s a Glock nine millimeter—is that close enough? I mean, Glock nine millimeters have to be the most common handguns there are, and Glock is great to rhyme with. Does it have to be the number of shots fired? In one court, it could require lots of detailed connections. In another, a judge could easily say, “Oh, well, this was about shooting someone in the face and this person was shot in the face. That’s pretty close. We’ll do it.” 

What are the arguments in favor of using a defendant’s lyrics against them in court? 

Andrea [L. Dennis, the coauthor of Rap on Trial] has been saying this for a while now: We’ve been at this for years. We’ve succeeded in getting the topic on the national radar, educating more and more people about this, and revealing how unjust it is. And the silence on the other side is deafening. Nobody’s really stepping up and arguing, in any sort of coherent way, for the other side. They’re keeping their heads down, probably because they know it’s bullshit. 

There was a police officer—I think he was the head of a gang task force—who basically said, “Look, these are not the smartest guys.” And you hear some version of this all the time. It’s hard for many police officers, and certainly judges, prosecutors, juries—collectively, many people in America—to view these young men as intelligent, as being capable of producing something complex and sophisticated. If you know anything about rap music, you know it is both of those things. And so the fallback position is, “They’re not smart enough to be writing poetry, to be engaging in a serious art form, so they must be rapping about things they did.” That’s why this practice is so dangerous. It is rooted in certain stereotypes not only about the hyper-criminality of young Black and Hispanic men, but also that they’re not bright and that they’re not capable of producing the kinds of art that your favorite artist is capable of producing. And so that makes it even easier to portray this as purely autobiographical: nothing figurative, no metaphor, no poetic devices, no artistic devices. It’s just what this kid did. Forget the fact that as soon as you examine the lyrics, you realize that he talks about having a Lamborghini and a G6, but he’s got a public defender.

If prosecutors continue to use defendants’ lyrics against them in court, what kind of chilling effect could that have on artists going forward, in terms of their creative process?

You’ve already got people like 50 Cent and Bobby Shmurda, these well-known artists, saying, “Hey, watch what you put on your records.” In the foreword to our book, Killer Mike says, “Look: If you want to identify this person, don’t use their name. Use a name that sounds a lot like it. Look for ways to make your point, but still be slippery.” And that’s because he’s in the same predicament that many of us are in, which is [juggling] the theoretical view and the pragmatic view. The scholar in me says [artists] should not have to change a single thing that they are rapping about. But the father in me is thinking about my own kid, saying, “Change that lyric. You’re gonna get in trouble.” Because the reality is you know that they could get locked up for it. And so you’re at that kind of crossroads. 

I am sure the chilling effect is already there. It’s just hard to measure. But one thing I’m certain of is that the longer that this practice exists and the more it grows, the more you will see a vibrant art form being silenced.

Drew Schwartz is a senior staff writer at VICE. Follow him on Twitter.