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Rap on Trial

Under the leadership of Al Gore, in 1985 the Senate held hearings on the “dangers” of rock music. Musicians were called to testify and politicians preened as they slandered the music created by their constituents. The idea of music as an evil force–a narrative previously the province of the Klan and extremist religious groups–entered the mainstream.

That same year, the Parents Music Resource Center (PMRC) came out of the woodwork. The PMRC was a group of Washington wives who used the influence of their politician husbands to develop some clout of their own. They allied with the PTA to push for warning labels on records, tapes, and CDs. Shortly after the 1985 Senate hearings concluded, the music industry quickly caved in and agreed to put such labels on the music.

The real agenda of the censors was revealed at a secret gathering in the Maryland countryside in 1986.  On its private invitations the event was billed as a “Pig Pickin’ Barbecue,” a benefit for the PMRC. The thoroughly bi-partisan “Benefit Committee” included Marine Corps commandant P.X. Kelly, Marriott vice-president Fred Malek, former Republican Party chairman Dean Burch, Al Gore, future HUD Secretary Jack Kemp, past president of the American Bar Association Robert Wallick, and Merrill Lynch vice-president Bruce Thompson. If its real purpose was simply to raise money, these well-heeled folks could have just sent a check. In reality it was a war council of America’s power elite, brought together to discuss the threat that music posed to their unquestioned control of society. Music had become the conscience of the world. Musicians were using the corporate structure of the music industry to spread their messages.

The attacks on music began on a broad stylistic front but gradually narrowed to a primary focus on rap. The Beastie Boys and LL Cool J were arrested. The major record labels set up in-house lyric censorship committees and rappers who wrote songs criticizing the police weren’t allowed to record or release them. Insurance coverage was canceled for rap tours. Police established local and national monitoring networks, disrupted shows and tours, and threatened to make it impossible for Time Warner, a major distributor of rap music, to do business.

One of the PMRC’s primary allies, the evangelical Focus on the Family, used a chunk of its $57 million annual budget to oppose Earth Day, child care, and the anti-apartheid struggle that was a big part of the hip-hop scene. FOF also put out an audiotape, Bringing Hope to the Inner City, in which Dr. John Perkins warned against getting drugs out of the black community because “You’ll have a generation of people who are going to get a leader and say the problem is society around us.”

The Congressional Black Caucus, National Organization For Women, the NAACP, and both the National and Progressive Baptist Conventions backed a boycott of Tower Records for selling hip-hop music.

In 1996, the Clinton/Gore administration pushed through the Telecom bill, which made it a crime punishable by up to five years in prison to distribute or promote by any means music that is “obscene, lewd, lascivious, or filthy.” The definition of those terms was left up to prosecutors, who were made legally free to go after not just artists or record companies but bloggers and DJs as well. Among the 91 Senators who voted for the bill were presumptive 2020 presidential candidate Joe Biden and Carol Mosely-Braun, convener of her own Senate anti-rap hearings.

Things have been relatively quiet on the censorship front for the past several years. The easy availability of downloaded music is one reason,  but the main factor is that there was a war and the other side won the battle. A systemic censorship was put in place, part of an ever-growing web of control that includes the Patriot Act, cameras on almost every corner,  gang databases, post-Occupy restrictions on protest, and privacy invasion as a fact of digital life,

Yet nothing could stop hip-hop from becoming the world’s most popular form of music. Despite all the resultant pressures on the content of rap, it is omnipresent and remains a bone that would-be censors cannot swallow or spit out.

Erik Nielson and Andrea L. Dennis, authors of the new book  Rap on Trial: Race, Lyrics, and Guilt in America, write: “In the early morning hours of August 9, 2014, eighteen-year-old Michael Brown was shot and killed by police officer Darren Wilson in Ferguson, Missouri. On the day of Brown’s funeral, a New York Times article about Brown painted a picture of him as a troubled youth and referred to him as ‘no angel.’ The article described Brown’s alleged criminal history, drug and alcohol use, and his residence in ‘a community that had rough patches.’ Brown reportedly ‘had taken to rapping in recent months, producing lyrics that were by turns contemplative and vulgar.’ The article then quoted one of Brown’s lyrics: ‘My favorite part is when the bodies hit the ground.’ There were softer lyrics in which Brown complained about deadbeat dads and doted on his stepmother. But those didn’t reinforce the narrative of Brown as a monster and were left out of the article.”

The obvious message from the nation’s paper of record? Michael Brown got what he deserved. Meanwhile a new and rapidly escalating war against rap has been gathering steam over the past fifteen years, as detailed in Rap on Trial.

This new book describes how prosecutors are using the alleged connection between violent crimes and “violent” rap music to get defendants, usually young black men, sentenced to long prison terms or even, in many cases, death.

“Police are using rap lyrics to identify and arrest suspects. Prosecutors are using them to charge those suspects. Those suspects are then pressured to accept plea bargains.”

The general scenario is to identify a suspect who has recorded rap music, often accompanied by a video, and allege that the lyrics, which may or may not describe violence or drug dealing, prove that the defendant was guilty of a crime (a prosecutors training manual recommends this approach). This happens even if the lyrics were written by someone else years before the alleged commission of a crime. In almost every case the lyrics do not describe the actual crime in question. People have been found guilty when the evidence is merely that they were standing in the background of a rap video. Prosecutors have even introduced as “evidence” the fact that there was rap music played as incidental music in a video.

According to Nielson and Dennis, there have been over five hundred instances nationwide of “rap on trial.”   In one case the court held that writing lyrics with drug references proves guilt in drug trafficking.  In thirty cases, lyrics have been used to pursue death sentences.

“Prosecutors use rap lyrics to show that defendants have bad characters and by nature are hyper-violent criminals who need to be removed from society…This approach relies on the assumption that rap artists–unlike other artists–are incapable of separating their music from their real lives….By this logic, the  many actors who have played violent characters, singers who have recited violent lyrics, or authors who have written violent novels could find themselves persecuted.”

If the actors in, say, Breaking Bad–a violent TV series of some note–were arrested for a crime, would their acting be submitted as evidence? Of course not.

On February 20, 2000, a rapper from the No Limit label named Mac was performing at Club Mercedes in Slidell, Louisiana, when a fight broke out and a young fan was shot and killed. Despite the fact that witnesses identified the shooter as someone who looked nothing like Mac, authorities arrested him for murder.

The authors go on to say: “At trial they produced a number of witnesses who would, nearly fifteen years later, recant their testimony completely, revealing 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.” Mac was convicted and sentenced to thirty years.

How do prosecutors get away with such conduct?

As a lawyer friend told me: “A prosecutor holds all the cards, and the deck is stacked completely in his or her favor. A prosecutor has the entire law enforcement investigative power and money at their disposal; a prosecutor’s evidence is based on what the same law enforcement investigators say was found or said–meaning that the fact-gatherers are also the advocates. A prosecutor has unlimited resources and most defense attorneys have little to work with. When a defendant does have money and gains an acquittal, the hue and cry is always ‘See, money buys acquittals.’ No, money buys convictions.”

“In order to indict,” add Nielson and Dennis, “grand juries do not have to reach a unanimous decision, and if the grand jury declines to indict, the prosecutor can simply present the case a second time to the same grand jury or to a different one. Because the process is so one-sided, it’s often said by prosecutors and defense attorneys alike that you could indict a ham sandwich.”

But if you’re innocent you’ve got nothing to worry about. You can always clear yourself at trial, right? Hardly. The grand jury indictment sets the stage for the prosecutor to intimidate the defendant into a plea bargain (over 90 percent of all felony cases are settled without trial). A heavy sentence is held over the head of the defendant, who is constitutionally presumed to be innocent. If they’re a rapper, their lyrics are thrown into the threat mix. Often without effective counsel, the defendant usually takes the deal, saving the state the cost of a trial while creating another cog in the wheel of the prison industrial complex.

When a rapper is on trial, so-called “expert” witnesses, usually police officers, testify that the defendant’s lyrics establish guilt. Such experts are seldom knowledgeable about rap music, often comically so. Rap on Trialdescribes one case where a juror had to speak up and correct the misinformation presented.

On the other hand, Davey D, unquestionably the most knowledgeable hip-hop journalist in the world, was called to be an expert witness in the trial of a rapper in Baltimore. The judge would not allow Davey D’s credentials to be presented and he was denied expert witness status.

At the same time, “gang” has become a word with the same function and meaning as the word “terrorist,” a wand to be waved to prevent further discussion. This is certainly the case in rap trials, where the constant refrain of “gang member” is used to browbeat juries into convictions. Convictions with “gang enhancements” make long sentences longer and help to keep the prisons full. Officers from local gang units take the stand to assert the gang membership of defendants. Do they know what they’re talking about? Nielson and Dennis explain that most gang unit officers spend the bulk of their time doing surveillance of social media and spend little time on the streets.

“In 2012 New York City announced it was doubling the size of its gang unit to 300 people. This massive increase came even as gangs accounted for less than 1 percent of city crime. The city would be deploying more gang police than there were total gang-motivated crimes (264) for that fiscal year.”

A defendant is presumed to be a gang member if he or she is in one of the ever-expanding gang databases. You can be included simply for the way you look or because you live in the wrong neighborhood (one of the criteria for inclusion in California’s massive CalGang database is “Subject has been seen frequenting gang areas.”) An audit of the CalGang database found that it contained 42 people under the age of one.

Gangs do exist and gang members sometimes cause violence. But before we accept the violent stereotypes the media and prosecutors promote as an explanation, we should look at the economic context. For example, a map of factory closures in Los Angeles is almost identical to a map of areas of gang activity.

Violence doesn’t come from the human nature or musical preferences of those whom ambitious prosecutors demonize as predators. It comes from living in a world of extreme economic polarization where people are forced to fight over scraps. It comes from living in a world saturated by war and other forms of official violence, a world where movies and TV constantly put forward violence as the solution to conflicts, a world where, since 2004, there have been over two thousand people in Southern California shot by police (one indictment, no convictions).

          “If you are able to speak to the masses, they will come after you.”–Davey D

They will come after you in different ways depending on your status. Superstar rapper Kendrick Lamar had many run-ins with LA cops when he was coming up. If he’d remained local he would have been a likely candidate to wind up labeled a gang member and sent to prison. Instead, he became a star and put out the song “Alright” (with lyrics “And we hate po-po / Wanna kill us dead in the street for sure” accompanied by a chilling video about police brutality). “Alright” became an anthem at police brutality protests. Because of his visibility, Kendrick Lamar was attacked not by armed police, but by Geraldo Rivera on Fox News, who blamed Lamar for the fact that “Hip hop has done more damage to young African-Americans than racism in recent years.” When Beyonce critiqued the police on her Super Bowl halftime show and on the video for her song “Foundation,” police chiefs nationwide howled in outrage but she wasn’t dragged off to jail.

These megastars are not likely to be stopped in the streets, harassed, arrested and forced to defend themselves in court. A little further down the rap food chain, it can be a different story. The artists at No Limit Records out of New Orleans, successful but out of the full glare of the mainstream, have suffered consistent police harassment. Rapper McKinley Phipps (Mac) is doing thirty years for a crime he almost certainly did not commit. Cops pulled over Lil Boosie and cut up the upholstery in his car with a knife. In Pittsburgh, unsigned rappers Jamal Knox and Rashee Beasley recorded a song called “Fuck The Police.” They were arrested for making terroristic threats and sent to prison.

The war on music has moved beyond PMRC-style censorship. To understand why, we need to look at recent history. Rap music emerged from the South Bronx in the 1970s as a direct result of some of the earliest manifestations of deindustrialization. Trapped in a crossfire of unemployment, arson, drugs and violence, local youth invented a whole new culture. There was plenty of resistance to it, but nobody went to jail based upon lyrics they had written.

Fast forward to 2005, the year in which “rap on trial” began to grow like a weed in the judicial system. Deindustrialization was now rampant throughout the country. The Clinton crime bill of 1994 had borne its fruit–the biggest system of incarceration the world had ever seen. The rap audience was now multiracial, worldwide, and huge, meaning a rapper, whether local hero or superstar, was now in a position to help further erode the racial and social barriers that kept different sections of the people apart.

Today, in 2020, the power elite wants to keep nurturing the prison industrial complex to satisfy its many economic stakeholders,  including the private prisons which are contractually mandated to remain full. This vast apparatus is sustained by a relentless flow of new bodies: 2.3 million people behind bars, 5.1 million on probation or parole.

In part, rappers behind bars are just the collateral damage of an onrushing police state. But on the other hand, rap music is the most important voice of resistance to that police state. The creation of special police squads in many cities to infiltrate and keep track of hip-hop culture confirms how seriously the forces of law and order take this musical and social threat.

Eighty-five percent of all defendants in trials in which lyrics are used against artists are black. Nielson and Dennis compare this to the example of Johnny Cash, whose lyrics in “Folsom Prison Blues” (I shot a man in Reno / Just to watch him die) obviously meet the current standard for legal sanction. The same could be said about white artists such as the Kingston Trio and their song “Bad Man Blunder” (“I was feeling kind of mean/ I shot a deputy down”) or  Eric Clapton’s hit cover of Bob Marley’s  “I Shot the Sheriff.”  But these songs are from the twentieth century, when no one of any color was being persecuted in court for their lyrics.

Race clearly plays a role when rappers are on trial today. Prosecutors regularly traffic in the most revolting racial stereotypes to remind jurors that young black man equals thug equals criminal. This corresponds to the way the huge edifice of control has been constructed, in which fear-driven racial propaganda equals a phony drug war equals massive prison budgets equals police forces beyond any public accountability.

But there’s also another picture. Detailed studies reveal that half of all people killed by the police in the United States are white. A massive Justice Department survey showed that half of all people abused by police in a year in the United States are white. This makes sense since half of the poor in America are white. On the other hand, black and brown folks are killed and abused by police out of all proportion to their numbers in the population, an inevitable outcome given the inequality which has defined this country since its inception. Meanwhile, the deindustrialization which was once almost unique to the South Bronx, the birthplace of rap music, is now the norm nationwide.

A love of rap music is also nationwide, present in all communities large or small. Rap provides a connection between countless people regardless of race, age, or gender. That same music is under attack, from the courts to the media, from a superstar like Kendrick Lamar to an unknown like Jamal Knox. Can we unite to defend it, to take rap’s most important messages and use them in our common interest?