Op-Ed:  A new California trend -- prosecuting rap

For 16 months, Bay Area rapper Deandre Mitchell — better known as Laz Tha Boy — has been sitting in a jail cell faced with a decision no artist should have to make: whether to defend his innocence at trial, knowing his music likely will be used as evidence against him, or take a plea bargain and admit to crimes he maintains he did not commit.

Mitchell’s case dates to October 2012, when he was indicted for his alleged role in two gang-related shootings that occurred that year. Prosecutors didn’t present a single arrest or conviction to establish Mitchell’s association with a criminal gang, and with conflicting eyewitness testimony — and no physical evidence connecting him to the shootings, according to defense attorney John Hamasaki — prosecutors elected to introduce something else: Mitchell’s violent gangsta rap videos and lyrics, which were presented to the grand jury as evidence of his criminal behavior.

Although some of the videos were made years earlier — and none included specific details about the shootings he was charged with — they did contain graphic depictions of violence, including lyrics such as “If I see him I’m gonna murk him / three round burst leave a ... face burgundy.” Ignoring the basic distinction between author and narrator, prosecutors invited the grand jurors to conflate Deandre Mitchell with his musical persona, Laz Tha Boy. Mitchell was indicted on all counts.

Unfortunately, similar cases are playing out across the country. Other forms of fictional expression — rock music lyrics, novels, films — typically remain off-limits in the courts, but rap music has become a target for prosecutors who realize how effectively it can be wielded to gain leverage in a plea bargain, guarantee an indictment or secure a conviction.

University of Georgia law professor Andrea Dennis puts it in stark terms: “When courts permit the prosecutor to admit rap music lyrics as criminal evidence, they allow the government to obtain a stranglehold on the case.”

Prosecutors gain this stranglehold by redefining rap music as something other than art or entertainment. Instead, prosecutors have successfully convinced judges and juries that rap lyrics are autobiographical, that they provide clear insight into a defendant’s thoughts or actions.

The problem, of course, is that rap relies heavily on figurative language (it’s rhymed verse after all), and the first-person characters portrayed in rap songs, almost always signaled with a stage name, are often a far cry from the artists behind them. This is especially true in gangsta rap, where rappers take on larger-than-life criminal personas and offer exaggerated, graphic accounts of violence. If judges and jurors don’t appreciate that these are genre conventions, they can easily conflate fiction with fact. In effect, they end up putting rap on trial.

Research tells us why this is bad news for defendants. Experimental studies, for example, have shown that not only can rap lyrics exert a prejudicial impact on potential jurors but also that violent lyrics are considered significantly more dangerous and offensive when associated with rap compared with other (traditionally white) genres, such as folk or country music.

It is certainly true that gangsta rappers, to establish credibility, often make claims that they live the lives they rap about — that they are “keepin’ it real.” But this is largely a pretense, one that aspiring amateurs feel compelled to embrace in their efforts to succeed in a hip-hop industry that requires its artists to manipulate identity in complex ways.

Our research suggests that California, a crucial hub in that industry, is ground zero for prosecuting rap. The seminal case allowing rap lyrics as evidence was decided by California’s 4th District Court of Appeal (People v. Olguin 1994) and its dockets now produce an alarming number of cases, including most of the ones we’re currently consulting on.

It may seem ironic that the home of gangsta rap, and the state that brought us such rappers as 2Pac, Dr. Dre and Ice Cube — is also leading the charge in prosecuting it. And yet California is also the state whose aggressive and sometimes discriminatory law enforcement strategies helped fuel gangsta rap in the first place. Its gang injunctions and sweeping databases, for example, have drawn sharp criticism on constitutional grounds and for their inconsistent application.

Now, in training materials, prosecutors in gang cases nationwide are encouraged to follow California’s lead in using evidence such as rap lyrics so they can, in the words of former Los Angeles Deputy Dist. Atty. Alan Jackson, “invade and exploit the defendant’s true personality.”

Jackson’s prescription offers a disturbingly candid glimpse at the use of rap lyrics in criminal proceedings, a practice that is indeed invasive and exploitative. By playing to judges’ and jurors’ ignorance of the artistic conventions behind rap music — not to mention long-held stereotypes about the young men of color who primarily produce it — prosecutors across the country, and especially in California, are creating a climate in which a fair trial seems out of reach for men such as Deandre Mitchell. That’s a steep price to pay for your art.

Charis E. Kubrin is an associate professor of criminology, law and society at UC Irvine. Erik Nielson is an assistant professor of liberal arts at the University of Richmond. They serve as expert witnesses in cases that use rap lyrics as evidence.