On Contact: Criminalization of rap with author Erik Nielson

Prosecutors have secured numerous convictions by presenting the lyrics and videos of rappers as de facto confessions of criminal activity.  This has led to aspiring young rappers serving lengthy prison sentences in the United States including the rapper Mac who was convicted in 2001 of manslaughter after the prosecutor liberally quoted passages from his album, “Shell Shocked.”  Joining me to discuss what in essence is the criminalization of an art form is Erik Nielson, the author of “Rap On Trial with Andrea Dennis, Race, Lyrics, and Guilt in America.”  So I--you make the distinction in the book between the high profile rap artist that we know, Tupac and, you know, who are pretty much left alone, not completely.  But the judicial system has really gone after amateur or local.  Explain what’s happened.

EN: Well, that’s right.  I mean, there are some isolated examples of more high profile well-known artists who have been caught in the crosshairs of this as well, but as a general rule, this is something that amateur rappers are facing and there are a number of reasons for that, but one of them is, I mean, above and beyond the fact that they lack the name recognition that well-known artists like Tupac or--have is that they also lack the resources to mount anything like a vigorous defense.  And so they become more vulnerable.  It’s easy for prosecutors to use rap lyrics against these young amateurs either to get convictions or more often to scare them into taking a plea bargain and they don’t have the help that they need.

CH: Well, in the book, you say we don’t really know the extent to which people have been incarcerated for, in essence, rap because most of them are forced--a lot of them are forced to plea out.

EN: That’s exactly it.  We don’t have a sense of the true numbers, the true scale of any of this.  I mean, we know that the five or so hundred cases that we’ve identified are just scratching the surface.  But that’s exactly right.  We’re certain that the majority of these cases will never make it to a legal database because they’ve resulted in a plea bargain.  That is a very common tactic that prosecutors use because defendants know if those lyrics show up in court, they’re in big trouble.

CH: What do you think is--has generated this assault on rap?

EN: That’s a--that’s a short question that has a lot of answers.  I mean, I would say that this phenomenon what we call Rap On Trial is a variation on a century’s old dynamic of punishing speech, punishing expression, particularly among marginalized groups, particularly black Americans.  We--you see that from the very beginnings, from--in the antebellum south, their slave--singing was banned, drumming was banned.

CH: So they have, what are they called?  Slave hollows, or places where…

EN: Hush harbors.

CH: Hush harbors, right.

EN: Yes, yes, that’s one name for them.  They--but exactly, the idea that if you--when you--when you read sort of the testimonials of slaves and obviously the work of a number of historians, right, they’re--these hush harbors were places often in the wilderness, often where people would stand and the slaves would stand in a circle and they would--they would compose often extemporaneously but they had to do it out of the view of the slave owners who would often punish them severely if they were caught even singing.  And so if you begin with that sort of premise that black speech and expression is punished then we have lots of examples in the ensuing centuries.  I mean, obviously the FBI and COINTELPRO with J. Edgar Hoover is a great example, but this resides in a much longer tradition of viewing black expression and black art as a threat and something to be punished.

CH: Well--and even with jazz artists like Billie Holiday were just terrorized by the FBI.

EN: Absolutely.  I mean J. Edgar Hoover and the FBI were some of the biggest consumers of black art and black literature partly because they saw any sort of black radicalism as a--as a serious threat, perhaps the most significant threat that American democracy faced.  And so, right, jazz artists faced.  Even cabaret laws in places like New York where they were often used as cudgels to punish artists or keep them out of the city, we actually see that today.  There is--even now, there is widespread, often police-driven venue resistance when it comes to rap artists.  It’s very difficult in many cities across the country to even book a show because of police pressure and then insurance companies who charge premiums that are just unaffordable.

CH: So it seems that the two major institutions that have gone after rap artists are the police.

EN: Yes.

CH: And the judiciary.

EN: Correct.

CH: Government prosecutors.

EN: Yes, absolutely.  And we have contemporary examples.  I mean, the--you think of NWA and when they released their iconic song “[BLEEP] The Police,” am I allowed to say that?

CH: They’ll bleep it out.

EN: Okay.

CH: F The Police.

EN: F The Police.  When they released their iconic protest song, “F The Police,” the FBI started writing letters to their label.  Their shows were often sort of, you know, in Detroit, they were arrested for performing the song.  We have many examples of rappers being punished for obscenity, Luther Campbell in 2 Live Crew would be the, you know, sort of obvious example, but the judiciary and police have, yes, worked in tandem for as long as there has been hip-hop, for as long as there has been rap music, there has been this antagonism and those are the two institutions that are primarily responsible.

CH: And from the book, it’s been quite an effective technique in the court.

EN: It’s absolutely effective.  It’s frighteningly effective.  And it’s effective not only in securing convictions, but as the practice gains momentum and as judges continue to not do their jobs as gatekeepers in the courtroom, and as appeals are continually unsuccessful, we see that there is no reason to believe that this is going to slow down at all.  Prosecutors have realized that if you can get these inflammatory lyrics in front of a jury, they can be highly prejudicial and secure convictions even when evidence is weak otherwise.

CH: Although as you point out, I think there was a study, somebody, with country western lyrics, Johnny Cash talks about shooting a woman, right, in Folsom prison or something.  I can’t remember.

EN: He shot a man in Reno just to watch him die and he shot Delia.  The murder ballad is actually really is a--is a prominent feature in country music, so it’s a great example of another genre that does include violent themes.

CH: But in this--in this study, they gave just the lyrics to a group of people and some of them were rapping, some of them were country music.  I mean, can you explain what happened to…

EN: Yes.  So the first study, and I say the first because it’s been replicated in the last couple of years, the first study was in 1999.  A social psychologist named Carrie Fried basically took some stock lyrics, it was from a folk song actually, and violent lyrics and just put them on a page, stripped away any indication of who the artist was or what the genre was.  Then she divided people into two groups and she gave one group those lyrics and said these lyrics came from a country song.  Took the exact same lyrics and gave them to the other group and said these came from a rap song and measured their responses.  And what she found is that the group that believed that these were rap lyrics found them to be significantly more threatening and in need of regulation than those who believed it was a country song.  And that was in 1999.  That study was replicated, I think, 2016 to see if maybe rap’s mainstream appeal has changed these dynamics.  It has not.  Those differences still exist and persist.

CH: You talk about various scenarios that are used by prosecutors.  Let’s run through them, The Diary.

EN: Right.  The Diary is essentially when prosecutors argue that the lyrics are confessions.  So if the lyrics were written after the--whatever a crime is being alleged, if they were written afterwards, then what police will say is if you read these lyrics, these are autobiographical journals.  That’s how one prosecutor in a case I testified in characterized them.  And they start reading them and representing them as literal truth and fact.  And so if there’s a shooting, they look for a--you know, if there was a shooting, they look for a line where he talks about shooting even though those are stock lyrics from a number of rap songs.  And they’ll say that those were a confessional.  That’s The Diary.

CH: So you actually quote in trials where they will take bits and pieces of lyrics, they’re not even contiguous.

EN: No.

CH: I think there was a rapper who was talking about his father was a Vietnam vet and they just twisted it.

EN: That’s the case you opened with, the case of Mac Phipps who, from No Limit Records, right, what the prosecutor did was he not only altered the lyrics but he took--so not only did he represent the lyrics themselves incorrectly in each song, he then took bits and pieces from two different songs, put them together, and represented those as Mac’s words.  He--they were essentially about Mac’s Vietnam veteran father but the prosecutor, of course, omitted that detail and attributed the words to Mac really just to make it seem like he was the violent person that he needed him to be to get a--get a conviction.

CH: But is he serving a 30-year sentence or something like that?

EN: Thirty-year sentence.  He was--he was found guilty ten to two because Louisiana was one of the states where you--where non-unanimous jury verdicts could still result in a conviction.  So, right, he was convicted ten to two at the lesser charge of manslaughter.  He has been reluctant to accept any kind of parole because that would require him to essentially admit to a crime that he’s not going to admit to.  Thirty years.

CH: Motive and intent.

EN: Essentially, it’s--it--the--it all boils down to the same misreading of rap, essentially reading the lyrics literally.  In this case, it’s often when the lyrics were written before any crime.  Right?  So now, it can’t be a confession if it was written beforehand.  And so all of a sudden, what prosecutors will do is they’ll use these lyrics to establish a number of things.  It could be somebody’s motive or their intent, it could be their knowledge of, say, drug trafficking.  They’ll say, “Oh, see, this person is aware of this violence,” that type of thing.  That’s often how prosecutors will represent the lyrics if they were written beforehand and there are a number of cases that I’ve worked on and studied where lyrics written years before the crime that make no mention of the details of the crime are used this way effectively for prosecutors.

CH: Threats.

EN: That is a smaller but growing subset of cases.  And that’s, unlike the first two scenarios that you--that you mentioned in which rap lyrics are being used as evidence of somebody’s guilt in an underlying crime, with threats, the lyrics themselves are the crime because the First Amendment, according to the courts, does not protect what are called true threats, these lyrics are read as direct threats to another person and prosecuted as such.  And those cases are the minority but they are definitely growing.

CH: And why do you think this is so effective with juries?

EN: I think it’s--I think it’s effective because the rap lyrics--I mean, I should say that rap itself is very--is diverse.  Lots of different types of rap music, but the…

CH: But Tupac has a song about his mother.

EN: Yes.  Absolutely.  And even these amateur cases, when I go through all their lyrics before a trial, say, and they’re talking about their girlfriends, their cars, but prosecutors cherry pick the lyrics that unfortunately map to many enduring stereotypes that people have about young black and Hispanic men because that’s who these defendants are, almost no white defendants, almost no female defendants.  And so I believe that these lyrics are effective for prosecutors because they reinforce these stereotypes about criminality, hyper-sexuality that make it easy for jurors to see this young man as a predator, somebody deserving of punishment even if the evidence doesn’t bear that out.

CH: Great.  When we come back, we’ll continue our conversation about criminalizing rap with Erik Nielson.  Welcome back to On Contact.  We continue our conversation about criminalizing rap with Erik Nielson.  So, now in the age of social media, police are quite intrusive in terms of following social media to identify and arrest suspects and charge suspects based on what they put up on.  Explain that.

EN: It--what we’ve seen is that the use of rap lyrics as evidence really started to explode around, say, 2007, 2008.  And that corresponds almost perfectly with the rise and increase of social media, right?   And over those early years, you know, usage was doubling and so what you saw was that aspiring artists had new and powerful tools.  I mean, you don’t need record labels anymore, you don’t need radio play, you don’t need MTV, you can use these social media platforms, like YouTube or SoundCloud, and market yourself directly to you audience, that’s really good and that’s helped a number of rappers who otherwise would not have been successful make it.  But what it also does is it gives police a tool and they have been using it obsessively in some cases.  I worked in one in Virginia and the head of a gang unit, I believe it was in Newport News, said that his detectives were spending about 50% of their time behind the computer doing just this sort of thing, not going out into the community, not gathering real intelligence or not doing what you would think of as typical police work but really just using the videos and looking for evidence of crimes that they can then prosecute.  In that particular case, they actually used a video to charge somebody with a case that had gone cold for five or six years at that point.  They found a video, decided it was a confession, right?  The Diary, and they went after him for it.  So, that’s--that is playing out all across the country all the time.

CH: Well, you have cases of people who are in a rap video and they didn’t write the song.

EN: No.

CH: And they’re charged.

EN: Yes.  Oh, the due diligence just doesn’t exist when it comes to rap music.  In many of these cases, nobody has established that the person performing the song even wrote it, they have not taken any efforts to determine when it was written which is important if you’re characterizing it for example as a diary.  And in many cases, just being in the video, not performing it, not having written it, but standing in the back and bobbing your head and showing support, that’s used regularly often to show that you are often to create connections that they will say are gang related because often, especially in places like California, a charge that carries just a few years, if you can say it was gang related, if you can get a gang enhancement, it can be 10 to 15.  And so oftentimes they’re using those videos to suggest gang affiliation in many of those--those are often the cases that go to a plea bargain because the threat of a gang enhancement is so significant that people don’t want to take their chances at trial.

CH: To what extent is this in an effort by the state to quash the very real police violence, even terror that exist because it does give expression to these out of control police that are using lethal force against unarmed primarily black men but anyone of color.

EN: Yeah.  I mean it is--it’s disturbing.  It--I work on one case where a young man had posted something to Facebook and it was a threat towards a courthouse or something like that and he even said, “You know, I’m just kidding, you know.”  But he was charged and he was found guilty.  I mean, he was sent to jail for it.  At the same time, there was a police officer I believe in that department or a neighbor in the department who called somebody and left a ranting message on her machine that was overtly threatening, he was not even disciplined.  I think it’s partly that the state is complicit in silencing voices of dissent, voices of resistance, it has always done that.  But it’s also that police themselves are--have very thin skin and a lot of these threats cases actually go to court when somebody is threatening a police officer.  It’s usually when somebody is challenging an authority figure.  A teacher, a police officer, that’s a dynamic that’s playing out over and over.  And it’s absolutely true that this systematic attack on rap music is, I think, at some level intended to chill that kind of speech, that kind of resistance.

CH: Well, you talk about how when local or amateur rappers incorporate into their art specific acts of police abuse, then they’re really in for it.

EN: Yeah.  And God forbid they name the police officer who did it.  That’s right.  It has--now but that goes back to that distinction that we made at the very beginning between well-known artists and amateurs because there are well-known artist, I’ll take Ice Cube for example from NWA, he has written songs where he has identified police officers, that police officers’ actually responsible for the Rodney King beating.  Identified them by name and said that he was going to go kill them.  That made--I think he--that was one of his more successful albums actually that--the song that I’m referring to.  But if amateur artists do it and--they get punished almost exclusively.  And now with the paranoia, understandable paranoia around school shootings and things like that, you’re also seeing schools begin to discipline students for rap music.  Even if they’re writing down the lyrics that somebody else, that a well-known artist performed, even writing down the lyrics of a well-known artist can get you arrested.

CH: Well, we have cases of that.  They search a car and they find something like that and off they go.

EN: I testified in a case where the gang investigator, along with the prosecutor, took this kid’s lyrics, notebook, you know, page after page and went through lyric by lyric and explained, “Oh, this is where he confesses to this and this is where he talks about his gang membership, and this is--” it turns out that that, that the song that they had spent all this time with wasn’t his.  He even had the name of the real artist on the top and the title of the song and they had spent all this time characterizing something that this is just a kid writing down a lyrics to the artist he likes.  This--that happens a lot.

CH: Anti-terrorism laws, since The Patriot Act, you’re right, they’ve essentially twisted anti-terrorism laws to go after rappers.

EN: They can, yes, and that’s correct.  I mean, after 9/11, you saw states start passing these anti-terror laws, often broad and sweeping.  I’m not even sure if they--they’re not used that often, I’m not sure if they would survive sort of constitutional scrutiny because they’re so broad.  But that’s correct, they’ve used anti-terror laws to go after rappers and that’s when they’re charging these threats.  Those true threats that we talked about are almost always charged as terroristic acts.

CH:  What has this done to the art form?  I mean, you--in several cases, especially talking about rappers who get out of prison, after serving their sentence, they’re very muted.  I mean, it has a kind of chilling effect on their ability to express themselves.

EN: I mean it’s obviously difficult to quantify what a chilling effect would be because how can you really quantify something--the negative, right?  It’s tough to--it’s the absence of speech.  But there’s no question, not only do you--do we have examples in the book, of artists who after they have said had served their time say, “Yeah, I’m still into rap music, but I’m going to stay away from the violent themes now.”  What you’ll see is that in videos now, I see this regularly and it’s smart but artists will say at the beginning of the video all of the things in here are props, right?  So, they don’t--because now they’re aware that people are watching them.  But that is still compromising the art form.  I mean, if you think about it some art form, professional wrestling’s another one.  You’re not supposed to see behind the curtain, that’s part of the allure.  What we’re doing is we’re forcing artists either to steer clear of all kinds of themes, or we’re requiring them to take steps that really are contrary to the art form.  So, there is clearly a chilling effect.  I think we’re at the very beginning of what could be far more severe of a--of a chilling effect.

CH: You talk about training manuals that advice trial lawyer--lawyers of all sorts to tell a coherent story that will resonate from jurors and what you say that they have to have stories that are fully fleshed out, complete with plots, characters, settings, and motive and rap becomes a very important tool in telling that story.

EN: Yeah.  And there is a certain irony to it because rap music is a--it is fiction.  That’s not to say that there aren’t things in rap songs that map to reality, but that’s true of all fiction.  What it--what prosecutors do is they take this fiction, they represent it as literal truth or fact, but then they do it so selectively and they create their own version of a song which is basically they’re creating their own fiction of a fiction and representing it as fact.  That’s what they’re doing time and again in these cases.

CH: You make a distinction between the narcocorridos.  These are the primarily Mexican ballads about big drug lord, big kingpins which I found interesting.  But you make a distinction between that and rap.

EN: Right.  I mean, narcocorridos are essentially the example that somebody might use to sort of counter our arguments, say, “Well, what about narcocorridos?” because unlike with rap music, narcocorridos, at least in their history, were often represented as something that was--that was true.  They represented themselves as actually cataloging the real exploits of whoever their patron was.  That was sort of the beginning of the genre.  It has changed now.  It now has fused in fictional elements.  But the key distinction is that rap music has never presented itself as some sort of chronicle of real events the way that narcocorridos have.

CH: Expert witnesses, you talk a lot about that when they --so, the prosecutors will bring up, “which are usually from gang units.”

EN:  Uh-hmm.  Yeah.  They are and they have absolutely no understanding of rap music.  Oftentimes in order to curry favor with the jurors, they will be openly hostile to it, “Oh, I don’t ever listen to that.  I don’t.”  And it’s clear that they don’t.  They say some--they say demonstrably false absurd things about the genre, they have no training in literature, many, you know, many don’t even have, you know, college degrees.  And that--I don’t mean to disparage people for that, but they don’t have any real training and yet they represent themselves as experts in a genre of a form that is highly sophisticated and very difficult to penetrate if you don’t really know because in addition to all the poetic devices you’d expect, it also has slang, its rapid delivery, all of these things.  And so they mangle it regularly in courtrooms.

CH: And these experts who are all police, how are they used in the courtroom when they get up in trial?  What are they--are they--are they essentially attempting to tie the--I mean, what is their primary role?

CH: In these cases, in the cases where there is a police expert, it’s usually a gang expert.  And, right, what that person is doing is saying, “Okay, this is consistent with what The Bloods or The Crips or whatever.  And here he’s talking about this and this reference is actually a real reference to a gang sect in this neighborhood of this city.”  And so what they’re do--but then sometimes their testimony goes beyond that and they actually start reading it the way you would a work of literature, it’s just comically bad when that happens.

CH: But is it primarily about tying the rap artist to a gang?  Is that the primary role?

EN: That is--that is the most frequent use of a police expert that I have seen, yes.

CH: And that’s because they’re sentences.  Once they’re tied to a gang then their sentence is expediential.

EN: Yes, or in some cases for example, there’s an artist out in Los Angeles named Draco who was just tried for nine or ten counts, was acquitted on almost all of them.  But one of the ones that the jury hung on and so they’re going to retry this is a gang conspiracy charge.  And in California, you basically, if you are found guilty of that, you carry the whole weight of a crime even if you didn’t commit it.  So, there was a shooting.  If they can show that you somehow benefited from that and it was gang related, you’ll do 25 years to life even if you had--were nowhere near the gun.  That’s what--that’s the kind of thing that they do, so it’s gang enhancements.  But there are entire charges that can put you away that aren’t enhancements, they’re conspiracies like RICO.  That’s what they do and they do it constantly.

CH: Right.  Thanks.  That was Erik Nielson, co-author with Andrea Dennis about their new book “Rap On Trial, Race, Lyrics and Guilt in America.”  Yes.

EN: Thank you.