Is it ever ok to think of a creative work as a smoking gun?
Photo via Getty Images/Stephen Lovekin/FilmMagic
Over the past year, a crew of scammers from Brooklyn used stolen credit card information to purchase over $250,000 in luxury goods. Nearly 40 people from Bed-Stuy, mostly teenagers, committed fraud to indulge their expensive tastes—from Saks Fifth Avenue to Barneys—and flaunted their wealth in a series of YouTube videos and rap songs. But to paraphrase a wise sage from their neighborhood, the group’s reign on top was shorter than leprechauns. Pop Out Boyz, as they’re locally known, were indicted this spring after they’d released a rap song called “For A Scammer,” which prosecutors say admitted the methodology of their crimes.
“Watch the money do a backflip, early morning up at Saks Fifth,” goes the most pertinent lyric. “You see it, you want it, you have it."
Those lyrics are so generic, the idea they would be used as evidence in a court of law is laughable. Yet the Pop Out Boyz story is just one among many recent cases either hinging on or emerging from rap verses, which, last I checked, are still protected by the first amendment. Autobiography has been fodder for art as long as humans have created, and projecting heroic futures or idealized versions of the self are cornerstones of any kind of writing.
Yet rap lyrics have been admitted to court for their supposed connection with real crimes as far back as the mid-90s. In 1994, California prosecutors attempted to lengthen the sentence of a man named Francisco Calderon Mora by using his lyrics to establish a connection to the Southside F Troop gang. “Nothing makes these rap lyrics inherently unreliable—at least no more unreliable than rap lyrics in general,” wrote Judge William Bedsworth of the appellate court in his decision.
In no other genre of music or writing (or any art, for that matter) would the raw material of a work be seen by authorities as “reliable” as a confession. But beyond allowing lyrics as evidence, it is the implied racism in Bedsworth’s decision that has evolved into a damaging systemic technique. I spoke with Charis E. Kubrin, a professor in the Department of Criminology at the University of California, Irvine and expert on rap music’s contentious relationship with the legal system, and she confirmed that this precedent doesn’t extend to other genres and mediums.
[quote position="full" is_quote="true"][Prosecutors] know they can get quick and easy convictions by playing on these perpetual stereotypes.[/quote]
“There is no other form of fictional expression being treated this way by the courts,” Kubrin told me. “You don’t find this for Quentin Tarantino movies or pro wrestling. Think of all the different forms of artistic expression that involve violence or crime in our society, and you don’t see this anywhere but rap. It reinforces the perceptions that create these cases in the first place. You’ve got a really vicious circle.”
Smoke DZA, a rapper from Harlem, explained that using lyrics as literal truth is an insult to the artistry of rap. “Rap is art,” he told me. “It's storytelling, it's not always accurate. That's like watching How To Get Away With Murder and building a case around the show. [Do] law enforcement and prosecutors question the writers or the actors? No! That's because it's entertainment. Rap is no different."
Yet dozens of prosecutions have relied on its lyrics over the past five years. The most high-profile rap case right now might be that of Bobby Shmurda, a Brooklyn artist whose 2014 song “Hot N****” went platinum and earned him a reported $1.5 million deal from Epic Records before he was arrested on gang-related conspiracy charges. While prosecutors are unlikely to use his lyrics in court (they were not directly mentioned in the indictment), he shouts out members of his GS9 crew on the song. All of them were indicted as well. Cops used Shmurda’s interviews, where he repeatedly claimed his lyrics represented “real life,” against him.
[quote position="full" is_quote="true"]Rap is art... It's storytelling, it's not always accurate.[/quote]
Even within rap itself, there’s a double standard. While featuring on a new Pusha T song called “Drug Dealers Anonymous” last week, Jay Z essentially detailed an elaborate money laundering scheme. “I been banking at Deutsche,” he raps after thanking his accountant and lawyer. “We got storefronts, we got employee stubs / We been opening studios and 40/40s up / The paper trail is gorgeous.”
I’d wager Jay Z won’t be arrested based on his wordplay, just as he was never indicted for dealing crack during the first decade of his career. In rap, it’s the nobodies who get screwed—the cases where rap lyrics are interpreted as terrorist threats from citizens with no criminal record, the poor kids who get lumped into conspiracies based on lyrics which prosecutors use to imply deficiencies in their character.
“Prosecutors play on stereotypes as an effective tool to win cases,” said Kubrin. “Lyrics and videos are prejudicial. I think they’re taking shortcuts. Rather than solving the case and getting real evidence, they know they can get quick and easy convictions by playing on these perpetual stereotypes.”
[quote position="full" is_quote="true"]In rap, it’s the nobodies who get screwed.[/quote]
I asked HXLT, an artist signed to Kanye West’s G.O.O.D. Music, if he thought lyrics were being unfairly used by law enforcement and prosecutors. Absolutely, he said, but it’s part of a much larger issue: Institutional racism. “Using lyrics is another ploy, a small piece of a bigger picture that they’re going to do any and everything they can to use black culture against itself,” he said. “Why do they press the guys who are trying to get away from bad situations? Even if they stop using lyrics, they’re gonna find a different way. There’s always somebody out there that’s waiting to capitalize on our mistakes.”
Just as it’s borderline insane for gang members to broadcast their activities on social media, it’s unequivocally dumb to rap about an actual crime you’ve committed. Law enforcement continues to mine the internet for leads: SoundCloud tracks and YouTube videos are popping up in court with increased frequency, and that’s a major loss for creativity—especially in an art form so reliant on powerful lyrics. If most were judged like rappers and convicted by the contents of their notebooks, jails would be even more overflowing.
There’s hope, however. An encouraging 2014 ruling by the New Jersey Supreme Court banned the use of rap lyrics in prosecutions by declaring they “poisoned the jury.” Now, if only other states would follow suit.