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McKinley Phipps, born into a family of artists and raised in New Orleans’s Third Ward, always had a gift for words. In 1990, at the age of thirteen, he released his first rap album, The Lyrical Midget. The record not only rode the rising tide of rap music across the country, but also foreshadowed the rise of New Orleans as a hip hop mecca, thanks in large part to the success of No Limit Records, founded by rapper Master P. At its peak in the 1990s, No Limit was producing albums at a dizzying pace and was expanding its roster to include the likes of Mystikal and Snoop Dogg. In 1998 alone, No Limit released 23 albums and sold nearly 15 million copies.
While he never led a life of crime, Mac was skilled at producing the gritty, often violent lyrics that helped No Limit sell records.
One of those albums, Shell Shocked, was by Phipps, now rapping as Mac. While he never led a life of crime himself, Mac was skilled at producing the gritty, often violent lyrics that helped No Limit sell records. As Mac noted in a 2016 interview: “We’re in this to make this money, and we’re feeding a market that demands this type of content. At the end of the day, I wasn’t walking around shooting people in real life. I wasn’t walking around selling drugs to people in real life. . . . I made the kind of music I made because to me at that time it appeared to be the most lucrative route.”
By 1999 Master P made Fortune’s “40 Richest Under 40” list, with an estimated net worth of $361 million. He was just twenty-nine years old. When he bought a mansion in Baton Rouge’s exclusive Country Club of Louisiana, next to former Louisiana governor Edwin Edwards, many saw the improbable and inspiring rise of a black kid from the projects. But many others saw something different. They saw black men getting rich off a form of entertainment they considered an affront to “traditional” values. And they saw a group of black men who weren’t afraid to call attention to police harassment, abuse, and corruption. One of Master P’s earliest songs, “Crooked Ass Law,” set the tone for subsequent songs from the No Limit label, which were sometimes openly critical of and defiant toward the police. In “Runnin’ from the Police,” a song by C-Murder (Master P’s brother) and No Limit labelmate Mystikal, C-Murder raps, “Every time I see the boys in blue / I wanna run and get the gun and start bustin’ for fun.”
Perhaps unsurprisingly, No Limit artists often found themselves the targets of police surveillance and harassment. Just driving a short distance could be provocation for a police stop. In a recent interview, Baton Rouge rapper Lil Boosie (who now raps as Boosie Badazz), also known for being critical of the police in his songs, spoke to the way he and others were routinely singled out by police. One time, for example, police pulled Boosie over, and before letting him go, they threw thousands of dollars of his cash across a freeway. Another time they took a knife to the upholstery in his car, just to make a point.
On the night of February 20, 2000, Mac was performing during an open mic night at Club Mercedes in Slidell, Louisiana, a small venue about thirty miles outside of New Orleans. A fight broke out and a young fan, Baron Victor, Jr., was shot and killed in the melee. When he heard the gunshots, Mac initially made his way to the back door before returning inside the club to make sure his parents, who were there collecting money for the performance, were safe. He drew his own (legally registered) gun for protection, meaning witnesses saw him with a gun in his hand, a fact that authorities seized on. They immediately identified Mac as the primary suspect and arrested him later that evening.
During the trial, the prosecutor took pains to depict Mac as the brutal character in his songs.
The ensuing process was a nightmare. Numerous witnesses at the scene described a shooter who looked nothing like Mac. The gun Mac was carrying hadn’t been fired, and police never recovered the weapon that had been. No other forensic evidence tied Mac to the crime. Another man even went to police and confessed to the shooting. Nevertheless, authorities charged Mac—who had no criminal record—with first-degree murder. At trial they produced a number of their own eyewitnesses, who have subsequently recanted their testimony and said that prosecutors threatened to put them in jail if they didn’t finger Mac as the shooter. One of them, a pregnant woman named Yulon James, was told she could identify Mac as the killer or have her baby in prison.
During the trial, the prosecutor took pains to depict Mac as the brutal character in his songs, quoting extensively from his 1998 album. “This defendant who did this is the same defendant whose message is, ‘Murder murder, kill, kill, you fuck with me you get a bullet in your brain,’” the prosecutor said during his closing argument. “You don’t have to be a genius to figure out that one plus one equals two.”
Mac was convicted of manslaughter and was sentenced to thirty years in prison, a term he is still serving despite mountains of evidence that he was wrongly convicted. He refuses to accept parole because that would require him to admit guilt.
‘The rap got his mind all messed up. He was making it big time with the gold chains and all that shit that went with it.’
Years after the verdict, the jury foreman confirmed in an interview that the lyrics presented to the jury certainly shaped his decision: “The music might have been the problem. The rap got his mind all messed up. He was living a life that he thought he was a gangsta. He was making it big time with the gold chains and all that shit that went with it. To shoot somebody in a public place on the dance floor, you gotta think you’re a bad son of a bitch.”
In a telling postscript, in the years following Mac’s incarceration, both C-Murder (Master P’s brother) and Lil Boosie were also charged with murder. In both cases, authorities used, or attempted to use, their lyrics against them. Boosie was acquitted; C-Murder was not. He is serving a life sentence, even as the eyewitnesses against him, as in Mac’s case, have recanted their testimony, claiming that police, who were openly hostile to rap music, coerced them all along.
Stories like these are playing out all across the country: with alarming regularity, young men are finding themselves in handcuffs, in courtrooms, and often in prison because of their rap lyrics. No other art form, musical or otherwise, is treated this way in court. Uses of rap lyrics by police and prosecutors share the common assumption that the lyrics are accurate reflections of the defendant’s thoughts, intentions, and actions. Rarely do authorities acknowledge—as they do with films, novels, and other musical genres—that there’s a distinction between the author and the narrator telling the story. Consider how that assumption would play out with other forms of entertainment: crime novelists, radical poets, and screenwriters of horror films would all be in trouble juries were convinced that their art was a reflection of their real lives.
Prosecutors should not be able to use rap in this way. Rap is an art form that privileges figurative language and resides in a long tradition of hyperbolic rhetoric. It has little, if any, probative value. At the same time, many people—mainly white and older people—simply don’t like rap music, and for them the genre often invokes racist stereotypes about the inherent criminality of young men of color. In a 1999 study, for example, participants were divided into two groups and then given song lyrics that contained depictions of violence (they were from a folk song). Both groups were given the exact same lyrics, but one group was told that they came from a country song, while the other group was told they came from a rap song. The group that believed the lyrics were from a rap song rated them as more dangerous and in need of regulation than the group that was told the lyrics were from a country song.
In a courtroom, using rap lyrics as evidence allows prosecutors to create a narrative about the defendant that is incredibly difficult to undo. Even with a weak case, they can win a conviction. Take the case of Vonte Skinner, a New Jersey drug dealer and aspiring rapper. In 2008 he was tried for the attempted murder of fellow drug dealer Lamont Peterson. When Skinner was arrested, police found pages of his violent rap lyrics in the backseat of his girlfriend’s car. During the trial, over repeated objections from the defense, the prosecutor was allowed to read to the jury thirteen pages of Skinner’s lyrics, even though all were composed before the shooting—in many cases years before—and none of them mentioned the victim or contained details about the crime. The tactic worked. Despite an incredibly weak case, the jury found Skinner guilty of attempted murder, and he was later sentenced to thirty years in prison. In 2012 Skinner’s conviction was overturned by an appellate court, which ruled that the lyrics never should have been admitted as evidence in the first place. The majority wrote, “We have a significant doubt about whether the jurors would have found defendant guilty if they had not been required to listen to the extended reading of these disturbing and highly prejudicial lyrics.” In August 2014, the Supreme Court of New Jersey unanimously upheld the appellate court’s decision.
Many agree to a plea bargain rather than face a jury that might equate them with the characters in their songs.
That’s a rare victory. In the vast majority of cases, rap lyrics are admitted as permissible evidence, and appeals are unsuccessful. The New Jersey ACLU, for instance, found that in cases where various courts considered the admissibility of rap lyrics as evidence, they were allowed nearly 80 percent of the time. Their data analysis came from a very small sampling of cases, however. Our research, which has the benefit of a much larger sample of cases, leads us to the conclusion that the number is significantly higher. Appeals of criminal convictions are unsuccessful generally, and appealing the use of rap music as evidence virtually never works.
Because it is such an effective tactic for prosecutors—and because courts aren’t stopping them—it makes sense that more and more are using it. Over the last decade in particular, we’ve seen a dramatic increase. There are a number of reasons for this expansion, including the role of digital and social media, the formal ways that police and prosecutors have enshrined the practice, and changes in the legal and political landscape post-9/11. But one of the most worrying is that the basic checks and balances that exist in the criminal trial process to ensure that everyone is playing fairly appear to be missing here.
To be clear, while we are focused on the use of rap as evidence in criminal trials, it should also be recognized that rap lyrics are routinely used throughout the criminal justice process. Police are using rap lyrics to identify and arrest suspects. Prosecutors are using them to charge those suspects. Because the stakes are so high for the young men caught up in this—and because rap lyrics make for convincing evidence for jurors—many agree to a plea bargain rather than face a jury that might equate them with the characters in their songs.
• • •
Society has long viewed black art as a threat and turned to the criminal justice system to control black speech and creative endeavors.
Why is rap singled out? There’s no single explanation. But many of the factors contributing to rap on trial are not new. Society has long viewed black art and expression as a threat and turned to the criminal justice system to control black speech and creative endeavors. From slave drumming and songs to Jim Crow–era ballads, in cabarets and juke joints, and during the civil rights and black nationalist eras, black art and artists have always been criminally regulated. Modern rappers are caught up in this legacy, with the use of rap as evidence representing the most current and, in some respects, extreme manifestation of this form of social control.
They are also caught up in the state’s long history of invoking racial epithets, narratives, and themes in the courtroom. Prosecutors know that they probably can’t get away with using overtly racist language anymore, but it doesn’t mean they’ve given up on playing to the fears and stereotypes that such language evokes. In a criminal justice context—and in mainstream discourse, for that matter—rap has long been a proxy for black (and sometimes Latino) youth culture. Like the word “thug,” which is race-neutral on the surface but is almost always used to refer to black men in pejorative ways, rap offers police and prosecutors a convenient way to talk about young men of color while invoking racial stereotypes that would otherwise be unacceptable.
And judges are letting them do it, despite being charged with ensuring that evidence doesn’t create unfair prejudice. They simply aren’t scrutinizing the evidence for unfairness or ensuring that police experts are appropriately qualified to testify about rap lyrics (which they almost never are). Judges also avoid serious consideration of whether First Amendment constitutional protections should keep lyrical evidence out of court.
In short, this practice happens because it works, few are aware it’s happening, and even fewer are challenging it. And it’s growing—not only because it is effective and relatively hidden from public view, but also because of the ease with which police and prosecutors can now find the evidence. Dramatic transitions in music format, artist and fan accessibility, and artist profitability have influenced how police and prosecutors find and use rap lyrics. Over time, options for music consumption have evolved from live performances to physical copies to digital formats. Rap evidence has similarly transitioned. When this issue originally burst onto the scene, prosecutors primarily worked with physical evidence, such as defendant-artists’ handwritten lyrics in notebooks or recordings on cassette tape, CD, or DVD. Today, the majority of music is consumed via downloading or streaming from the Internet. Facebook, YouTube, Spotify, Snapchat, SoundCloud—all of these digital platforms serve as sources for police and prosecutors to find rap evidence.
Another change that has occurred over the years is the music industry’s expansion from traditional record labels to include independent Internet production and distribution platforms. There is no need to wait for a record deal or music station to gain exposure. Artists big and small can directly and efficiently connect with the public by going directly to market through YouTube, Facebook, and SoundCloud. And the artist who develops a large fan base, even if still unknown on a national level, can then leverage that popularity into other moneymaking endeavors such as licensing, sponsorships, brand partnerships, live shows, touring, and festivals. Not only is the industry paying attention, but so are police and prosecutors.
To attract would-be allies to the cause of stopping the use of rap as evidence, it is tempting to frame the argument in terms of a slippery slope: people might not care about rap music or even like it, but they should still be worried because once we start limiting certain types of speech, we open the door to limiting other kinds of speech. An argument like this is tempting given the need to galvanize support among a diverse group of people, which can often be achieved by relying on their shared vulnerabilities.
Rap on trial is not a First Amendment issue with racial implications, it’s a racial issue with First Amendment implications.
The problem is that over the last thirty years, even as the use of rap as evidence has exploded, we have seen absolutely no creep into other art forms. In other words, if you try to scare people into worrying that country music, with its own history of violent lyrics and violent artists, may soon be targeted the way rap is, they will tell you that’s absurd, and they would be right. The same goes for horror movies or crime novels. The reason should be obvious. Those are primarily white forms of entertainment, which means they are more or less immune to the kind of judicial attacks that rap music, and the people who create it, endure routinely.
Therefore, a successful call to arms must by necessity be an accurate one: rap on trial is not a First Amendment issue with racial implications, it’s a racial issue with First Amendment implications. That’s not just a semantic distinction. We see rap on trial as both a window into the broader racial inequalities that play out in our criminal legal system and a casualty of those inequalities. We don’t want to minimize the importance of free expression or the need to protect it; we just want to be clear that we believe rap is being used to punish the people of color who produce it. In our view, meaningful change will come only if we first acknowledge this basic reality.
Copyright © 2019 by Erik Nielson and Andrea L. Dennis. This excerpt originally appeared in Rap on Trial: Race, Lyrics, and Guilt in America, published by The New Press. Reprinted here with permission.
Andrea L. Dennis holds the John Byrd Martin Chair of Law at the University of Georgia School of Law and was formerly an assistant federal public defender.
Erik Nielson is an associate professor of liberal arts at the University of Richmond, where he teaches courses on African American literature and hip hop culture.
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