BLACK VOICES

How Police And Prosecutors Are Treating 'Rapping While Black' Like A Crime

03/31/2015 07:34 am ET | Updated Mar 29, 2016

Since the birth of rap music, artists have written songs about pretty much everything: progress, struggle, success, failure, societal ills and the responsibility of hip-hop, even an “extraterrestrial time-traveling gynecologist and surgeon from the planet Jupiter.” Sometimes, their lyrics are an unvarnished reflection of the realities they live. Other times their words are less grounded in the truth, or are complete fiction. Rap, like any other musical genre, is about artistry, expression and entertainment. It has no obligation to absolute accuracy.

But what happens when a rapper's lyrics are used against them, cherry-picked by police and prosecutors and held up as evidence of a crime? A number of recent cases have highlighted this concern, reigniting debate around the controversial practice and how it is applied exclusively to rap music.

Last week, a San Diego judge threw out felony conspiracy charges against Brandon Duncan, a 33-year-old rapper who goes by the stage name Tiny Doo. He had been accused of contributing to gang activity. Prosecutors offered the lyrics of Duncan's self-produced mixtape, released in 2014, as proof. Duncan had faced the possibility of life in prison under a 2000 California law that has been used to crack down on gang activity and those who promote or benefit from it. In some cases, however, critics claim the law is also used to criminalize black culture.

“This is one of the most disturbing examples of where kids are using poetry to get out of the hood and we are sending them right back in,” Erik Nielson, a professor at the University of Richmond who has studied the prosecution of rap lyrics extensively, told The Huffington Post.

Duncan was being prosecuted under California's Street Terrorism and Prevention Act, or STEP Act, which deems it illegal to “willfully promote” or “benefit” from criminal gang activity. At the time of Duncan's arrest, he had no criminal record and no idea that he was facing nine felony conspiracy charges based almost entirely on rap lyrics published in his latest album, “No Safety.” Prosecutors argued that the material in the mixtape -- which includes lyrics like “Ain't no safety on this pistol I'm holding," and a sample of a speech by Black Panther Fred Hampton, also used by electronic artist Thievery Corporation -- had inspired a series of local rival gang shootings the year before.

Duncan claimed he was not a gang member, and that he hadn't even profited from his mixtape. One fact was never in doubt throughout the legal proceedings: Prosecutors did not believe Duncan was directly involved in any of the gang crimes. But they maintained they had enough evidence to link Duncan's rap lyrics -- which he says reflected his experience growing up in a rough San Diego neighborhood -- to crimes allegedly committed by other gang members.

“What is so frightening and disturbing about his case is that they were going to essentially pin the whole charge on this outrageous theory that because he was a rapper, his street credibility and therefore his popularity and records sales would have increased as a result,” Nielson said.

Duncan spent seven months behind bars after his arrest. Earlier this year, he posted bail after successfully petitioning to have it reduced from $500,000 to $50,000. While Duncan’s charges were ultimately dropped, his case highlights a disturbing trend of rap lyrics being used in courtrooms across the country, often in the absence of more traditional forms of hard evidence to link suspects to a crime.

“It is a cheap way to get a conviction, and we found in many cases that prosecutors are likely to do so when they don't have much evidence otherwise,” Nielson said. “No one seems to understand the severity of the problem.”

In one such case in 2000, up-and-coming rapper McKinley "Mac" Phipps was charged with first-degree murder after a concertgoer was shot during one of his performances near New Orleans. Phipps had no prior criminal record, and prosecutors for the state had no forensic evidence to tie him to the murder. Instead, they turned to his rap lyrics to attack his character. In his closing statement, Assistant District Attorney Bruce Dearing took lyrics from Phipps' song "Murda, Murda, Kill, Kill” and stitched them together with altered lyrics from another song, "Shell Shocked," presenting them to the all-white jury as proof that Phipps was a killer.

"This defendant who did this is the same defendant whose message is, 'Murder murder, kill, kill, you f**k with me you get a bullet in your brain,'" he said. "You don't have to be a genius to figure out that one plus one equals two."

The actual lyrics, "Ya f--k with me, he'll give you a bullet in yo brain," were about Phipps' father, a Vietnam War veteran. But the jury bought Dearing's simple math and found Phipps guilty. He was eventually sentenced to 30 years in jail.

"The rap got his mind all messed up," jury foreman Robert Hammell told The Huffington Post of the jury's decision to convict. "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 s**t 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 b***h."

Phipps performing "Murda, Murda, Kill, Kill” at a concert in 1999.

In the past few months, the prosecution’s witnesses have come forward and recanted their testimony, citing bullying by authorities who allegedly forced them to lie under oath. The allegations have added another wrinkle to an already complicated case, and again led to questions about how significant Phipps' lyrics were in obtaining a conviction.

Rap music -- and particularly what has become known in some circles as "gangster rap" -- often delves into violent and obscene topics. It's not unusual for these songs to cover details of actual events. But rap is also a genre in which stories are regularly told through the lens of a fictional persona assumed by the artist. With the success of amateur rappers often relying on their ability to come across as authentic in their music, performers may recount episodes that are well-known in a community but that they themselves weren't necessarily a part of. In other instances, rappers might simply embellish or fabricate details of an encounter or their involvement in it, in an effort to advance their career. The criminal justice system often appears disinterested in these nuances.

Critics also say there's a clear racial dynamic in how rap lyrics are seized upon and used against suspects.

“A lot of people have a difficult time viewing young men of color, the frequent producers of rap lyrics as artists in the first place,” Nielson said. “It's a potent tool for prosecutors because, frankly, they can secure a guilty verdict by playing into those stereotypes.”

In effect, people are more willing to take the content of a song at face value if the lyrics reinforce racially charged preconceptions about young, black males, particularly regarding sexuality and violence.

This makes rap a perfect weapon for law enforcement and prosecutors. Police have been encouraged to parse rap songs to see if they can make a connection between lyrics and unsolved crimes. As NPR noted in 2014, a sergeant for a Virginia gang task force told a German newspaper that his officers regularly scour social networks and amateur videos for potential clues, effectively spending about as much time on the computer as they do on the street. In 2006, the FBI advised prosecutors to examine suspects' rap lyrics, suggesting they should be considered literal reflections of "true-life experiences."

Prosecutors have introduced lyrics both as evidence of an actual crime, and of a suspect's supposed capacity to commit a crime. There are concerns that rap music is regularly misinterpreted or deliberately manipulated in these legal settings, leading to unfair trials that can end with an innocent person being convicted. And the controversy stemming from these practices extends beyond Duncan and Phipps.

In 2014, Antwain Steward was convicted on weapons charges linked to a 2007 double-murder in Newport News, Virginia. Steward was charged years later, after a detective assigned to the case was tipped off to a YouTube video of his song, “Ride Out,” which police said boasted about his role in the shootings. While there were clear discrepancies between the lyrics and the details of the crime, the prosecution brought forth witnesses that, years later, corroborated their claims that Steward was the shooter. During the trial, the defense cast doubt on the credibility of these witnesses. The prosecution objected to any mention of the lyrics that had led to the trial in the first place. The jury found Steward not guilty on the murder charges, but guilty on the weapons charges. He is now serving a 16-year jail sentence.

A recording of "Ride Out," by Steward, also known as Twain Gotti.

In Pennsylvania, Vonte Skinner is currently standing trial for a third time on charges that he shot and paralyzed a drug dealer in 2005. Skinner had previously been convicted for the crime and given a 30-year jail sentence after prosecution introduced rap lyrics as evidence of his violent predisposition and involvement in the shooting. The New Jersey Supreme Court later overturned that ruling, declaring his rap lyrics inadmissible and offering him another trial.

In March 2014, The New York Times reported that rap lyrics had played a significant part in nearly 40 prosecutions over the preceding two years. In a recent article for Vox, Nielson and co-author Michael Render -- the rapper better known as Killer Mike -- say they've "identified hundreds of cases so far, and we suspect that's just the tip of the iceberg."

Nielson told HuffPost these cases expose a deeply flawed double standard in determining what is real and what is metaphorical when it comes to artistic expression. He believes “the rules of evidence should automatically preclude the introduction of rap as evidence.” Such lyrics, Nielson says, should be protected as a nuanced art form, not put up for analysis under the hyper-literal mindset typically undertaken in the courtroom.

"The vast majority of aspiring rappers are spending hours a day working on rap music ... to escape a life of violence, not to perpetuate it."

Even if a guilty defendant is prosecuted and convicted with the help of rap lyrics, should those words be allowed to serve as a replacement for more traditional forms of evidence? Do we think it's fair for a prosecutor to tell a jury that they must judge a rap song's lyrics as an honest reflection of the artist's mental psyche, especially knowing the underlying racial biases likely to be at play? And more generally, which forms of expression should be protected and which should be allowed to be used against the person expressing them? The Supreme Court will take up this last question in a case later this year.

Enabled by murky legal territory, cultural ignorance and engrained racial bias, police and prosecutors have been rewarded for criminalizing aspects of an art form overwhelmingly practiced by young, black men. Nielson believes there's a particularly troubling irony in this trend of targeting.

“What most people are missing is that the vast majority of aspiring rappers are spending hours a day working on rap music and, regardless of the content, the reason they are doing it is to escape a life of violence, not to perpetuate it."

McKinley "Mac" Phipps
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