Rap on Trial: A Conversation with Andrea Dennis & Erik Nielson

This interview was originally published in BRICK Edition 09. To purchase a physical copy, click HERE.

Words by Mardean Isaac

 

Rap on Trial is about the criminal prosecution of rap music in America. Authors Andrea Dennis and Erik Nielson, academics in the respective fields of law and literature, have identified around five hundred cases – almost entirely involving poor young Black and Latino men – in which rap lyrics have led to arrest, trial and often incarceration. In nearly thirty of these cases, lyrics helped prosecutors secure death sentences.

Dennis and Nielson have written the book as a way of chronicling, and potentially advancing, their efforts to combat this practice. Their central thesis is that “the criminal justice system has effectively denied rap the status of art.” They recount cases where police and prosecutors present rap as “autobiography rhymed over a beat”, treating lyrics as “confession”, “evidence of the defendant’s identity, motive, intent or knowledge with respect to the crime”, or when lyrics are deemed threats and therefore no longer protected from criminalization by the First Amendment.

In these American legal spaces, where the freedom of citizens is being determined partly through textual analysis of a great American literary and musical form, lyrics are read out as evidence without any sense of their art or the commercial incentive involved (unless the rapper is already shielded through success and wealth). “Rarely do [police and prosecutors] acknowledge,” write the authors, “as they do with films, novels, and other musical genres, that there’s a distinction between the author and the narrator telling the story.” The practice taps into deep-rooted fears of Black criminality and lawlessness by taking the conventions of gangster rap in particular – which presented an inverted vision of American capitalism and violence to the very society it was pushing back against – as direct and literal evidence of the inherent criminality of the accused.

“In short,” the authors write, “this practice happens because it works, few are aware it’s happening, and even fewer are critically challenging it.” While they have blazed a trail in the reporting of this practice, and some major figures in hip-hop – most notably Killer Mike, who writes the preface to their book – have backed them, the authors also expressed disappointment at the lack of support they have received from rappers and industry people. They spoke about their plans to invest in grassroots and local political efforts as a way to combat this injustice, which is not only unknown in its true current scope, but is growing.

 

BRICK: I thought we would start by discussing the historical period when this story begins. You specify you aren’t fully certain that the first case of rap on trial you cite, United States v. Foster (1991), was really the first, due to a lack of comprehensive database information. But essentially we’re talking about an era where gangster rap, as a commercial product, expands into broader American society. And the music’s sociological aesthetics evoke deep racial narratives in American history, and fearful reactions.

 

EN: You’re correct, we don’t know precisely when it started. But it’s not a coincidence that rap on trial began just as gangster rap started to become ascendant. Gangster rap explodes to the point that without much radio or MTV play it’s still outselling a number of other genres and sub-genres. When labels started to see the success of the gangster rap model, the music industry itself starts moving rap in that direction, and over time it becomes the dominant form of rap. 

And gangster rap became very threatening, especially in the eyes of non-listeners; it became politically charged and controversial to perform. Look at the famous FBI intervention with “Fuck tha Police.” Gangster rap responds to the war on drugs in unique ways and gains traction not only in Black and Hispanic communities but white ones; arguably white listeners ultimately become the biggest consumers of it. Many people found, and still find that, threatening. At least in part, that explains why you started to see the use of these lyrics in court.

During this period, you also started to see more confrontational lyrics from the East Coast, through groups like Public Enemy. But gangster rap is what has been weaponised, for the most part, in court room settings.

AD: From the legal side, in the late ’80s and early ’90s, you begin to see a significant ramping up of the War on Drugs and anti-gang action, in the form of policing and prosecution policies, on state and local and federal levels. Federal money flows into states and localities to help with prosecution of drug crimes and gang crimes, with significant attention being paid by prosecutors to these kinds of offences. These police and government policies generate the birth of gangster rap. And of course, what gangster rap is focusing on is over and hyper policing – on brutality – along with criminality in particular communities. So the perfect storm of police and prosecution policies generates a new art form which then reinforces common stereotypes and tropes. And you have police and prosecutors acting in a very instrumental way – what evidence can I find that proves my case and helps with the investigation? Quite naturally, from their perspective, they turn to gangster rap, which has helpful and salient information that they can draw on to tap into understandings, beliefs, concerns and fears about rap and Black and Latino men in urban environments.

 

BRICK: Of course freedom of speech is enshrined in the American constitution and has been upheld rhetorically as a point of pride for American society for many decades. There are protections in place at almost every level you describe, in principle. The issue is that they have been made unavailable to rap and people who perform rap, with the exception of those who have made a successful business out of it. There appears to be continuity of purpose even if not of method. For example, obscenity was sometimes the free speech exception cited to pursue a rapper, but especially after the failure to prosecute 2 Live Crew in 1990, prosecutors moved onto focusing on threats. Can you explain how that process functions internally? Is this information travelling between lawyers?

 

EN: You’re absolutely right: we have the first amendment, and there are exceptions – certain types of speech that it doesn’t cover. Using those exceptions, law enforcement has used the jurisprudence around the first amendment to punish an art form that could only exist because of free speech. That kind of irony isn’t new. The idea that we have a set of laws and rules and protections that apply differently to different groups – that’s always been true, particularly when we talk about Black Americans and speech. As long as there have been Black people on American soil there were two sets of rules, and speech was always viewed as a severe threat. I’m not just talking about the antebellum south; you can take it up to J. Edgar Hoover and the FBI through to the present day. The motives seem to be the same going back centuries, it’s just the mechanisms that have changed.

Law enforcement seized upon rap music and used different strategies to go after it, whether through obscenity or threats, and we worry that will continue to extend. I think that is in large part because attorneys are talking to each other; we know they are, on both sides. There are formal training manuals that, in a general sense, encourage prosecutors to go after lyrics. Over time, the success or failure of tactics becomes known. With 2 Live Crew, they went after obscenity; it didn’t stick, and they moved on. One of the things they moved onto is ‘threats’, and those are sticking. As a general rule, as things become more successful from the prosecutorial side over time, not only do individuals share that directly, but it becomes part of what you see working and functioning. And even when you appeal and those convictions are upheld, you become emboldened.

AD: It’s a mashup of ways and methods – transmission of knowledge and tactics – within the larger government community among police and prosecutors, even legislators and those in the executive branch. They turn their attention immediately on rap music – sex, violence and threats are always going to attract government officials on the basis that young children (read: young white children) will be negatively influenced by this popular culture. So you already have legislators and other government regulators paying attention.

Within the standard toolbox, sex, obscenity and violence equate with threats. So you already have a legal toolbox for concerns and a doctrine that already exists for challenging obscenity and threats. You’d expect they would leverage those tools: to talk about them informally through phone calls and conversations they would have with each other: this is what’s in the toolbox, this is how we’d go after them. But then if you think about the move towards using the lyrics as evidence, that’s where you have police and prosecutors figuring out a way to maintain their policing and prosecuting priorities – young Black men, violence in urban settings, gangs and drugs – and as I said before, what’s the best type of information and evidence to support that. So now they’re having training sessions, talking to each other informally, preparing manuals – transmitting both the information and skill and tactics, both formally and informally. In many respects they’re just playing on and leveraging a standard legal toolbox. Rap on trial is within a new context, but one that is historically longstanding.

 

BRICK: These cases are weighed heavily towards amateur or aspiring rappers rather than established ones. One of very few famous names in the book, Eminem, is cited as a negative example: his lyrics were not prosecuted as a threat because they were performed at a concert. Are rappers who are widely known and/or rich, even those who frequently allude to illegality, protected from this phenomenon?

 

EN: In that example, which went to Supreme Court, the guy was merely quoting Eminem lyrics. But that speaks to your point. There are some examples of well-known rappers who have been targeted by this practice, but it is rare. The vast majority of cases involve amateur or aspiring rappers. They rarely have the financial ability to mount a vigorous defence, and along with that fact, once they’ve reached a certain level of celebrity, people, begrudgingly or not, have to acknowledge rappers as entertainers and artists.

The underlying assumption to all of this is that rap music isn’t art; that you can read it literally as rhymed confession. And I think that just becomes more difficult if you’re talking about someone who has sold millions of records. It becomes harder to make that argument, whereas if you limit it to these kids you view as unsophisticated, in communities you have no familiarity with, you can “other” them and negate what they’re doing as an art form. Celebrity can bring to bear many more tools to the criminal justice system than the average person; certainly versus those targeted by this practice. We know that in the United States, outcomes are in large part driven by financial resources.

 

BRICK: Unsurprisingly and simply, there’s a strong overlap between your socio-economic status and the outcomes you’d expect to achieve.

 

AD: People tell me that Jay-Z makes common references to his past and what’s he done, whether genuine or hyperbolic or somewhere in between. But along with current status and wealth, you also have the passage of time. Police and prosecutors are not interested in going after someone who is, as they put it, ‘clean’, or not worth their time right now. Decades-old potential criminal activity won’t be their focus. The low hanging fruit is what they’ll go after: amateur rappers who are still working their way up, still in the streets. There are examples involving famous artists that aren’t necessarily rap on trial examples. Every once in a while you’ll see an artist surveilled or monitored resulting in a gun or drug charge for what’s on their tour bus, or prosecuted for a shooting among their extended associates. So they get caught up in it but still not as deeply as the cases we’ve studied. In those cases, you are unlikely to see lyrics and persona trotted out to support a case, but there might be rare instances.

EN: You see a double standard between amateur and professional artists in variety of cases. Eminem talks about killing his ex-wife by name. I was recently involved with a case where a young man was convicted of conveying a threat because he identified police officers by name. But Ice Cube made songs where he threatened actual police officers in his community with murder, in detail. No one considered a prosecution then. Granted, the late ’80s and early ’90s was a different time. I wonder if gangster rap could have taken root today.

 

BRICK: It is distressing to encounter the unsearchability of the names in this book. These people effectively don’t exist in the public consciousness, or in the consciousness of professional society, in extreme contrast to someone like Jay-Z. This is why easily searchable information made only a limited contribution to the database you used for this book.

 

EN: I’m glad you said that; it reminds me of something. Occasionally I see instances where it seems clear to me that prosecutors and police are doing this under the radar because it’s very questionable, even in their own minds. One of the reasons that you might see this double standard is that if you go after a celebrity, you’re shining a spotlight on yourself too. And one of the things we note is that a lot of this is happening out of public discourse, out of view. That’s the story of our criminal justice system, not just about rappers. But I think that makes them especially easy targets, whereas celebrities can make a whole lot of noise and have political clout.

 

BRICK: The percentage you cite of white defendants is startlingly low: 1-2%. Why?

 

AD: We can start with our criminal justice system, which historically targets young Black men. The data we find is quite consistent with that historical fact. You can correlate it to police and prosecution priorities focused on certain types of drug crimes, and certain locations for violent crimes, at least until late: crack cocaine, heroin, so called drugs you might find in urban environments where police are prosecuting, in contrast with suburbs, exurbs, or rural America, where the population of whites is higher. Certain types of violent crimes are focused upon: urban violence, which tends to be predominated by young Black men.

We could correlate it to the producers of rap, who tend to be young Black men or Latino men, as compared to white folk. Of course that begs the question: for other musical genres that are predominantly produced by white artists, are lyrics being similarly used? And you know the answer is no.

EN: Most hip hop is still produced by Black and Latino men, yes, but that doesn’t account for why only 1-2% of defendants are white. In fact, it’s worse than that, because a couple of the higher profile cases involving white defendants ultimately won: the Elonis case, in which a 27-year-old white man posted violent rap lyrics on Facebook directed at his ex-wife, was overturned at the Supreme Court. Cameron D’Ambrosio, a kid in Boston, couldn’t even get indicted. What’s been startling to me – as someone who isn’t an attorney, hasn’t been up close to the criminal justice system until this work – is how you see at every level, knowingly in some cases, the system is set up to target young Black and Hispanic men. A lot of people find this practice surprising and shocking. It becomes less so when you put it in the context of a system that has been doing this forever and shows no real signs of changing. We’re still seeing videos of kids running and getting shot for nothing, and having to issue an outcry just to have people investigate. These situations would obviously be different if the races were reversed. Every day we’re reminded of the disparity you mention.

 

BRICK: There’s also a geographical, state-by-state disparity. Can you account for that on a historical or racial or economic basis?

 

EN: Some of it is just record keeping. From a procedural standpoint, it’s easier to find the data in some states than others. In some states we don’t have cases, but we know they’re there – it’s a matter of finding them. The aggressive anti-gang tactics that Andrea already mentioned – that the LAPD and others used in California before the ’80s, but which became increasingly militarised in the ’80s – would help explain why California appears to be the epicentre for all of this, why we still continue to see significant numbers of cases there compared to other places. It’s not just because California is populous; it has been a state which has foregrounded these tactics for a very long time.

Chicago is an example where there are many cases but not many of them show up in legal databases. Authorities there for a while now have tried to link drill and criminality. And while we know they are targeting that link, and we understand some of the connection they make, we’re not seeing cases. I’m fairly certain that’s more about how well those cases are being documented and recorded, and not based on regional differences.

AD: We should also mention New Orleans and the surrounding parishes, from which lots of cases emerge. Partly the correlation is those are large urban centers with thriving rap industries, which run from the professional to the amateur and up and coming, and are correlated with large Black urban populations and heavy policing and prosecution.

Even in some of these states where we’re not finding that many cases within the state – Erik worked on a case in Knoxville, Tennessee – it’s usually in the geographical area that has a relatively high Black population that we’ll find a case: “high crime area” is the term I hesitate to use, but we’re talking about heavily policed and prosecuted areas.

 

BRICK: Moving to the courtroom itself: the question of language in rap is where the racial, cultural and legal come together. There are the internal elements – the meaning of words and their arrangement in verses, different connotations and structures and dynamics – and then there’s how a rap lyric sounds being read in a courtroom, where the language is ‘objective’ but in this context also becomes ‘white’, set against Black American English. You convey the reality of mostly white people who have never heard this music, and are perhaps generally sheltered, being confronted with this stark language they had no prior knowledge of. In a relatively rare instance of an appellate court overturning a case (Skinner in 2012), the majority wrote that “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.” Can you talk about the nature of rap and legal language coming together in this context?

 

EN: It comes together badly for defendants. When I testify in court, it’s often based upon a relationship I’ve had with the attorney before the case goes to trial. I do what I can to work with them to avoid the scenario that you just described, where the lyrics are de-contextualized, musically or otherwise, with no sense of any of the artwork that goes into it. One of the injustices to rap music and artists, in that moment, is perverting art to suit your purposes. So when I work with attorneys, the first thing I do is get them to push to make sure that however the lyrics are presented, it comes as close to the artistic intention as possible. One of the things I try to do when I testify is explain that context: “I know what you just read seems really violent; I know you aren’t familiar with this culture, and the prosecutor said rap was a series of confessions. But actually, let me take you through the artform and talk about the literary, lyrical context; the tradition of literary, musical and cultural antecedents that all come together in this sophisticated way.” If you take the lyrics out of context and put them on a page and start reading them aloud, it sounds comical. It’s only comical to a certain extent, of course, because you know what they’re doing is potentially damaging. One of the first things you have to combat is desire to decontextualize lyrics, because it allows you to misrepresent things further.

AD: The three of us understand the literary and artistic distinctions between poetry, spoken word and rap. Those distinctions exemplify the problem in court. You have words on a page that may be transcribed by some person ill suited to transcribe lyrics. These might be lyrics that shouldn’t be transcribed – or translated. Then they are read in court, and while spoken word is performative, what happens in court is not musically performative at all. And what’s fundamentally missing, of course, is the sonic dimension of the music, which creates additional layers of feeling and understanding.

So there are some difficulties in translation between written and spoken word and lyrics, and also with whoever has transcribed or translated the lyrics and read them in court.

While you lose the artistic and musical aspect, police and prosecutors find recordings online, or find videos online. And that presents other problems with stereotypes, tropes and narrative: violent, hyper-aggressive, dancing; weapons and gang signs; in front of a trap house or in an urban environment. We have presentations that can be used in ways that can build on unconscious or express biases in jurors.

EN: The way I’ve tried to navigate dilemma is pushing for the video to be played, especially if it shows production quality, because I believe that adds to the argument that this is art or entertainment and something worthy went into it. That’s the dilemma that you find: if you play the videos, now you’ve introduced a whole new set of challenges. The only way I’ve found to navigate it is to provide analogs: “You understand that blood is part of horror, right? You remember how you like Scarface and The Godfather?” I provide popular culture examples to mitigate.

 

BRICK: At a certain point it might become difficult to prove you have friends. You write that you “regularly hear about cases in which prosecutors use a single rap video to indict various people who happened to appear in it, even if they were just standing or dancing in the background.” Having people around you to display the support you have, or to represent your neighbourhood, is labelled automatically as a gang based on people watching videos and pointing fingers.

 

EN: One of the things that came out of this research is a much deeper understanding of how police label and go after gang members, how they decide what a gang is and how dangerous it is. I’ve heard a police offer on the stand say that just living in an area that is gang active ticks the box for equating you with a gang. It has been made clear to me just how non-transparent, how one sided, this process of determining what a gang can be actually is. And the consequences can be devastating, even involving minor crimes, particularly in places like California. If you can connect someone to a gang, we’re potentially talking decades in prison.

 

BRICK: Erik, your experience as a countervailing force to gang experts is recounted in the book. How did that originate? Describe your engagement with defence attorneys, and how it has changed over time.

 

EN: I identified all the Google examples during the early stages of my research, and I knew there were far more. When I would hear of a case or I would find something on a legal web search, I would reach out to the attorneys: “What can you tell me about this case I’m doing research on?” Again, I’m a non-lawyer, so I’m learning both about the practice and about how the law works. I would learn a lot from them; most were really willing to talk. And at a certain point attorneys started saying, “I’ve helped you, now how can you help me?” So that’s when I started testifying and, yes, I’ve definitely had more requests over time: I can’t say yes to all of them. I’ve worked on a lot of cases now, and as Andrea and I have done more work to publicise the practice, and our interest in this area has also garnered attention, more people have reached out.

Just as this practice grows through word of mouth and in writing, we’re trying to get word out ourselves: You can bring in an expert, and you should. Before I knew about this practice, and Andrea was writing about it in 2007-2008, it seemed almost controversial to suggest you should have an expert; it was uncommon, certainly, and now it’s absolutely common. I don’t face real opposition as an expert; I’m always admitted. I’m not sure that was true when Andrea was writing in ’07-’08. Just as police have tried to build momentum for their practice, we have tried to build momentum for ours.

 

BRICK: Can you talk about your engagement with the hip-hop community? Have there been new developments following the book’s release?

 

EN: It hasn’t been that long since publication: we’re only six months out and COVID has put everything on pause. But we’ve had successes in reaching out to more folks. Killer Mike has been a mainstay; he’s been there for years now, as an advocate for this kind of work and our work. Mike and I wrote the amicus brief for Jamal Knox, which Meek Mill cosigned even though he wasn’t part of the case. An attorney from ROC Nation – Alex Spiro, one of Jay-Z’s attorneys – was able to get more to sign on: 21 Savage, Chance the Rapper, and Yo Gotti among others. And Luther Campbell of 2 Live Crew signed on, too. Right now, it’s just people lending their name to the cause, and Killer Mike is best example of a high profile artist making it one of their issues. But we have set out a goal of including more artists with some success.

I have been disappointed by the level of engagement by artists on this. And it’s not as if they’re unaware of it: they have become prominent enough to not be in the crosshairs anymore, but they are aware that police are watching them and the people coming up behind them. Artists aren’t saying bad things about this work; they just aren’t saying anything. You get 50 Cent or Charlamagne Tha God saying, “Don’t rap about bad stuff – don’t be stupid and you won’t get in trouble.” That’s logical but counter-productive.

 

BRICK: It’s the equivalent of telling someone to act submissive in front of the police to save their life instead of asking why that’s necessary to begin with.

 

EN: Exactly. The music industry is highly competitive. In rap, staying relevant is a constant battle involving constant hustle. So I understand that – as we are paying more attention to the criminal justice system, and we have been over the past decade – it’s harder to get this on people’s radar when there are so many things happening at once in our broken criminal justice system. But I feel that this hits close enough to home for rap music – and that the industry should be more wary than it is, especially because of the potential for other exceptions to the First Amendment – especially incitement, but there are others – being trotted out to go after rap and rap labels as well.

AD: One part that will be key is figuring out more of a local or grassroots effort. We may not be able to draw the attention or time of a high profile artist – there may not be much to be gained there beyond drawing attention and resources – so moving a few levels down in the industry and talking to local organizations and speaking to criminal justice reformers that leverage hip-hop artistry for juvenile rehab or re-entry and re-integration programs. Plenty of those operate locally which provides an opportunity and space to intervene, to help educate and inform, to help develop a grassroots effort to deal with this problem.

EN: And those are spaces in particular where I think this information is needed. One of the concerns I have is that hip-hop as an educational tool, as a therapeutic tool, has shown itself to be highly effective in diverse contexts. In schools or other community organizations, hip hop is being promoted as a vehicle to help with a variety of issues – but in doing that they are setting people up to be targeted by police. So even if your intentions are good, if you’re promoting rap as a tool, you also need to make people aware of how that tool can be used against them. People go into high schools, try to be the cool teacher, and get kids to write Biggie lyrics – but that’s risky. So our involvement with those organizations is about education, but also raising awareness at that level, rather than aiming at celebrities.

 

BRICK: Could the reluctance of rappers to speak up be a legacy of their own persecution?

 

EN: There may be something going on where your history or legacy might be weighing on you in some way. But not when you’re Dr. Dre or Jay-Z or Eminem. If you’re worth hundreds of millions of dollars you’re no longer going to be subject to the vagaries of the industry and you don’t have the same worries about your livelihood, or being arrested. At that point, you should feel an obligation to speak out in some way, because I don’t accept that you’re a vulnerable target anymore.

 

BRICK: There’s a grim line in the book: “In short, this practice happens because it works, few are aware it’s happening, and even fewer are critically challenging it.” That sentiment is obviously bleak in terms of what it says about the criminal justice system. But do you think that owing to that margin of ignorance connected to this injustice, and given how deeply the practice runs against the vaunted grain of American society, that it might be ended through sustained action?

 

AD: One proposal we have is that individuals be more conscious of who they’re electing as prosecutors. To the extent that prosecutors allow and encourage their officers to look for this type of evidence, they will do that. But if they are unwilling for whatever reason to pursue this tactic, that’s the win for us. So encouraging individuals to ask local prosecutors whether they support this tactic or view it as problematic is significant. The central lynchpin in this process are prosecutors.

EN: It is depressing but there is room for optimism. Because if it has been persistent due to the lack of a spotlight, perhaps there is room to weaken it. We do see glimmers of hope. I have worked on cases that resulted in acquittals where it was quite clear if we had not raised this awareness, if I hadn’t been involved, it wouldn’t have gone that way. One of the reasons we are pushing is we do sense there are spaces where we can have victories. But right now we are too small, and it is still getting worse. I’d like to say we’re David and Goliath, because then at least we’re David. But I’m not even sure we’re there yet.

There are small victories. The book itself has helped. There is a high profile race in LA county for District Attorney: Jackie Lacey versus George Gascón. A huge territory and highly contested space. There were debates and town hall meetings with some of the candidates. During one of them, the moderator brought up this issue and put them on the spot: “How do you view this practice?” And to my delight, at least the ones who showed up said: “Yeah, this is crazy, we wouldn’t do that.” So they’re thinking about it, maybe for the first time. Even if they get to office and it’s a different story, at least we have them on record. It starts to create the kind of pressure which, if we can multiply it, can shape outcomes.

 


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