Bars on the Page vs Bars Inside a Cage: On Legislation Efforts to Decriminalize Rap Lyrics
There is a push for legislation to be passed in New York that would not allow rap lyrics to be used as evidence in criminal cases. We talk with three experts about its significance.
Murder, murder; kill, kill/shit’s real on the battlefield….
When former No Limit Records rapper McKinley (Mac) Phipps was penning the lyrics to the song “Murder, Murder; Kill, Kill” off his 1998 label debut album, Shell Shocked, he never imagined that the song, which he wrote as a tribute to the military cadence war veterans like his Vietnam-veteran father used when preparing for combat, would be used against him in a criminal case that would compromise his freedom for more than two decades.
But that is exactly the strategy that prosecutors used against Mac as he stood on trial for a murder he was alleged to have committed in the year 2000 at a nightclub in Slidell, Louisiana located a few miles outside of New Orleans within St. Tammany Parish. And despite having substantial evidence to accurately convict Mac for the shooting that would claim the life of 19-year-old, Baron Victor III on February 20, 2000, and despite a confession from the actual shooter, Mac’s aunt’s fiance who worked as his security, a non-unanimous jury decided in a 10-2 ruling that the prosecution’s use of Mac’s “gangsta” lyrics was sufficient enough evidence to prove he was guilty of second-degree manslaughter.
The court’s interpretation of Mac’s art and the manner in which it was vilified by Louisiana state prosecutors resulted in Mac being given a 30-year-prison sentence. Mac would go on to serve 21 of those 30 years before being paroled last summer.
In a recently published XXL Magazine article on rappers who had served the longest prison sentences, Mac’s stint of incarceration was listed as the second-longest sentencing any rapper ever served, with the longest given to Bay Area rapper, Big Lurch, for the crime of murder and torture, that resulted in him eating pieces of his victim’s flesh while on a PCP binge. On the contrary, Mac, who was completely innocent of the murder he was convicted of, spent 7,214 days in prison, nearly 3,000 days more than the third-longest [and ongoing] hip hop-related incarceration of his friend and former No Limit label mate, Corey (C-Murder) Miller.
And though the weaponization of Mac’s lyrics by the Louisiana criminal justice system was absolutely the most consequential instance of a hip hop artist’s music being used against them in a criminal trial, it is far from the only example of prosecutors across the country who have built cases against rapper-defendants by literally using their words as weapons. But after years of rappers receiving unjust sentences on the merit of their lyrics being used as autobiographical confessions of crimes, a collective of highly influential hip hop artists, scholars and activists have assembled to push legislation intended to prevent song lyrics from being used as evidence in criminal cases.
On January 20, prominent musicians and members of academia including Jay-Z, Fat Joe, Killer Mike and Michelle Alexander released a sign-on letter urging the New York Legislature to pass “Rap Music on Trial” legislation. The bill which is sponsored by Senator Brad Hoylman (D/WFP-Manhattan), Senator Jamaal Bailey (D-The Bronx) and Assemblymember Catalina Cruz (D-Queens) is intended “to enhance the free speech protections of New Yorkers by raising the threshold for the use of an artist’s creative expression as evidence in the courtroom.”
Additionally, the legislation would “guarantee freedom of creative expression in New York by prohibiting prosecutors from using creative expression as criminal evidence against a person without clear and convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case.” Of course, the matter of rap being used as an autobiographical admission of guilt has much further reaching implications than just what happens in New York state [as Mac’s case and several other cases have shown], but a successful passage of this legislation in the birthplace of hip hop music and culture would serve as a warning to other would-be culturally tone-deaf prosecutors that the criminalization of hip hop expression will no longer be tolerated.
The advocacy around this issue has gained a great deal of momentum on account of the notable signatories who have lent their celebrity to the cause, but as is the case with any movement geared toward deep systemic change, there has to be a few distinctive figures that lead the charge with expertise and/or lived experiences. Three of the most prominent voices in this fight are Mac, Erik Nielsen, professor of Liberal Arts at the University of Richmond and co-author of the book Rap on Trial that examines cases where rap music has been used as prosecutorial evidence to secure convictions of rappers on trial, and Alex Spiro, a trial lawyer and partner Quinn Emauel Trial Lawyers and attorney to rap heavyweights such as Jay-Z, Meek Mill and 21 Savage.
I recently had the privilege to be in conversation with Mac, Erik Nielsen and Alex Spiro about the history of the criminalization of rap as an art form, the criminal justice system’s inability to suspend its disbelief when it comes to rappers and what is necessary to eradicate this specific type of social injustice.
There are enough ways in which this system is already implicitly biased against Black folks in this country and has rooted in its system draconian laws that have been imprinted into the law books for generations.- Alex Spiro
As a high-power lawyer that works with a myriad of big-name celebrity clients, Alex Spiro started paying closer attention to the ramifications of rap lyrics being used as trial evidence in criminal cases the more he was noticing unsettling patterns of hip hop-related convictions.
“It was a pattern for sure, but it's somebody who is watching the First Amendment and the issues with that in this country,” Spiro informed me. “And also issues of finding ways to prosecute and unfairly treat Black folks in the system. I saw these two things merging together in this situation and it affected a lot of my clients and a lot of people, and we started talking about it and here we are.”
Spiro, who was pivotal in helping to secure the release of 21 Savage after he was detained by Immigration and Customs Enforcement (ICE) in 2019, and has also represented legally-embattled hip hop stars such as Bobby Shmurda, is fully versed on how much lesser the burden of proof becomes in the American criminal justice system when the defendants have a vast audience that listens to rhymes layered with criminal innuendo.
“There are enough ways in which this system is already implicitly biased against Black folks in this country and has rooted in its system, draconian laws that have been imprinted into the law books for generations,” Spiro deduced. “So we are already starting off with an uneven playing field and a troubling history in this country. I'm not so sure why to weaponize one more thing. And so if laws like this pass, we can turn our attention to the other things that corrupt the system.”
The New York-based lawyer recognizes the cultural currency at stake in pursuing this groundbreaking legislation in the birthplace of hip hop culture. He also knows that New York is one of the few states that boast of social liberalism and progressive criminal justice reform where the Rap Music on Trial bill stands a chance at getting through the statehouse.
“If we can get smart, interested folks here and get more media attention here, and you get people like Shawn Carter [Jay-Z] here then by its passage and I think the celebration from its passage, I'm hoping that it is replicated elsewhere.”
And when asked how the fight to decriminalize rap lyrics impacts non-hip hop fans, Spiro spoke candidly about the wide-ranging implications that cases that infuse rap lyrics as evidence have on free speech in general.
“They're [the legal system] converging here in a singular point to criminalize what we tell young people to do, which is, you know, express yourselves, speak your mind, find art, find creativity, find ways to occupy your time that are not improper. Do that. That's what we want you to do. And here we are having officers and prosecutors who have no connectivity to the very people they seek to police pouring over hours and hours of footage and trying to say to themselves, ‘well look at what he just said, maybe there's something to that.’”
I've worked on probably almost a hundred cases, and I have yet to come across a case where somebody was openly confessing to a crime that had details that match. - Erik Nielsen
When Erik Nielsen and his Rap on Trial co-author, University of Georgia’s Associate Dean for Faculty Development & John Byrd Martin Chair of Law, Andrea L. Dennis began researching cases for their book, there were a few things that caught Nielsen off-guard about the regularity in which rappers’ lyrics were being utilized not only as a prosecutorial tactic to disparage the character of rapper-defendants but also as damning evidence that played a key role in rappers being sentenced.
“There were two things that surprised me,” Nielsen said. “One was that it was pervasive that even though whether it was through legal databases or even just Google, I was finding incidents all across the country where this was happening. And many of these young men would not have attracted any media attention.”
“The other thing that surprised me was that nobody else was talking about this. It was happening pervasively, probably [in] every state though the data are hard to come by in some states, but we know that it's so widespread. And I think I was just shocked that it was happening to the extent that it was and that nobody was talking about it when they should have been.”
Described as a “groundbreaking exposé about the alarming use of rap lyrics as criminal evidence to convict and incarcerate young men of color,” Rap on Trial asked if it would have been absurd for country and folk music legend, Johny Cash to be charged with murder for once singing the lyric “I shot a man in Reno just to watch him die,” then how and why does a legal double standard exist for rap music that would allow Mac Phipps to lose 21 years of his life on account of a prosecutor using his fictional lyrics against him?
But as one gets beyond the differences in instrumentation, lyric arrangement and musical aesthetic between hip hop music and other musical genres, the answer for the juxtaposition becomes clear: rap music is primarily created by young Black men and young Black men are the primary targets of the prison industrial complex.
In 1999, Dr. Carrie B. Fried, a professor of psychology at Winona State University, conducted a study that examined public outcry against violent rap lyrics. Participants in the study were given violent lyrics and were told that the lyrics were either a country song or a rap song. According to the study, when the violent lyrics were presented as a rap song, participants had a more negative reaction than when the lyrics were described as a country song.
At the time of the study, its findings were discussed as a means to unpack various examples of racism and stereotyping, and rap music was one of, but not the dominant genre in American music. But when the same study was conducted again in 2016 after hip hop became the number one musical genre on the planet, the findings were similar. Nielsen was not too entirely taken aback by what the study revealed.
“It doesn't surprise me one bit that people found the lyrics to be far more threatening and in need of regulation. If they believe they were authored by a Black guy and in a genre that, you know, many people dislike for reasons [that] certainly include race.”
Nielsen did however admit to being slightly astonished to find out there was not much difference in the responses from participants in the 20-year gap between the study being conducted.
“I think what surprised me a little bit more is that that very same study was replicated in 2016. So almost 20 years later, like I kind of get it [the] late 90s when she did her study, rap is still kind of not on everybody's radar. I mean, it probably should have been, but it wasn't. But it’s become ubiquitous. It influences so many aspects of popular culture. And I thought that that would lead to at least some more awareness or understanding about it as art. But when the study was replicated in 2016, they got the exact same findings almost 20 years later.”
Still, in spite of the study’s findings not differing much from the late-90s to the late 2010s, Nielsen is hopeful about the legislative efforts that Rap on Trial has inspired, and believes that if it is successfully implemented and replicated beyond New York, it can shift the burden of proof in cases where rap lyrics are considered evidentiary.
“I'm hopeful that, what this doesn't do, is it doesn't ban rap lyrics. It doesn't say as much as maybe I think it ought to it. It doesn't say they can never come in as evidence. It just shifts the burden. It just basically shifts the burden to the state to prove that this is meant to be literal.”
“I'm hopeful that if it passes, it will put judges in a place where they aren't able to use as much discretion as they would like to. And I think in this case, not in all cases in the criminal justice system, in this case, that's a very good thing. Because so far they have shown themselves [un]willing or unable to apply the basic rules of evidence to rap music, but not any other fictional form, just rap music. So I would like to create some guardrails.”
I would go on record to say at least 85 to 90 plus percent of what you're hearing [in] these songs are fictional. I mean it is very rare that the people that's writing these songs are actually doing what they're talking about specifically at the magnitude that they talk about it- Mac Phipps
The changes that Alex Spiro is advocating on behalf as a legal expert and Erik Nielsen is advocating on behalf of as a scholar/cultural critic, Mac Phipps is fighting for as a hip hop artist who lost the lion share of his young adult life as a result of a prejudicial legal system unable to separate art from reality in its application of the law. The outcome of Mac’s murder trial was partly attributed to a now-outdated Louisiana judicial ruling that formerly allowed for a defendant in a criminal trial to be convicted of a crime without a unanimous jury decision. In Mac’s case specifically, two jurors held reservations about his guilt, but their uncertainty was suppressed by a legal precedent that didn’t require full consensus.
Mac was on trial in a brutally racist parish, in a state where fair trials for Black men are often non-existent. The sociopolitical climate at the dawn of the 21st-century coupled with the parish’s representation set the stage for a miscarriage of justice to take place, which was something that Mac recognized as the case was unfolding but sees even more clearly in hindsight.
“It was the perfect time for them at that time to make a political statement for this area because they had already,” Mac says. “It was known by us in New Orleans, not to cross that parish line, you know, don't go over there because them white folks gonna get you. So that was always, you know, kind of talking to us. And I went over there to do a performance, and it was an opportunity for them to show people from New Orleans, particularly Black males from New Orleans, this is what we're going to do if you come over here. We're going to take one of your heroes and show you that this is a person who can afford the attorney. This is a person who in your little minds in your area should be able to get out of this. We're gonna make sure he don't and that's what they did.”
The person who was responsible for the shooting death that Mac was charged with confessed to the crime 10 days after Mac was arrested. Local authorities believed that he was lying to protect Mac and threatened him against showing up to trial two weeks prior to it beginning. Even at the time, Mac could not understand the absurdity that would cause the legal system to believe that his security person would willingly confess to a crime that would take away their freedom.
“My response or what I told my lawyer to convey to them [the court], was what can you pay a man to do the rest of his life in prison? That doesn't even make any sense. We're not talking about ‘yo, that's my weed though.’ ‘That's my gun or, or whatnot.’ We're talking about confessing to a killing, a homicide. I mean, this ain't like if he would have made this confession, he was just going to go home.”
But when the prosecution could not lean into Mac’s past criminality, because there wasn’t any, and when they were unable to match ballistics or corroborate witness accounts to their benefit, they used Mac’s music as their smoking gun to paint him as a menace capable of murdering someone in cold blood.
“He kept alluding to ‘Murder, Murder; Kill, Kill’. And, you know, he kept using the words against me, but the weird thing is when it came to actual facts, they didn't have any. So what they had to do was create it [and] it was tricky because actually, the lyrics were, their strongest piece of evidence.”
Mac makes no bones about how difficult it was to endure a 21-year prison sentence for a crime he did not commit, “prison was not a cakewalk. It was very difficult,” but he still strongly believes in an artist’s right to free speech in spite of the trauma that was inflicted on to him. His advice for inspiring emcees who have street-oriented music, be true to themselves but understand that the justice system is still not above using whatever tools at their disposal to ensnare young Black men.
“ I do believe in free speech. I do believe in the freedom of expression, but I would encourage [a] young man to really consider what he's projecting out there, and I would give him the facts and use my case to show him that this can happen to you. So even though it's not right. And even though we have people like Eric and others who are advocates to fight against it, nevertheless in real-time, people are still being put in this, this position and it's still being used against him. So I would basically use my situation to offer him an alternative like, yo, before you do that young brother, I don't know if you wanna do that. And here's why.”
Mac’s freedom sits at the intersection of empathy for the family of the young man that lost his life outside of that Slidell club and remorse for all the time his freedom was unjustly taken. One of those misfortunes is irreversible, but the other can be changed through courageous advocacy by folks like Mac, Erik and Alex.
“There was a victim in this situation, you know that is the most unfortunate thing. And there is a family that is grieving, their loved one. This did happen. Someone did get killed, but the wrong person was convicted and he was convicted in a very nefarious manner. And his song lyrics were used against him in court. That should not happen in a civilized society.”
ABOUT THE AUTHOR
Donney Rose is a Writer, Educator, Organizer and Chief Content Editor at The North Star