Photo Credit: Jeff Kravitz/FilmMagic for Life is Beautiful Music & Art Festival
Erik Nielson, c0-author of Rap on Trial, spoke with us about Young Thug’s RICO case and the ongoing use of rap lyrics as criminal evidence.
What do the following lyrics all have in common?
“Red just like Elmo but never fuckin giggle.”
“I’m not new to this, hey, I’m so true to this, hey, done put whole slime on hunnid licks.”
“I escaped every one of the licks cause I was supposed to be rich / I don’t care nothing ’bout no cop, I’m just tellin’ you how it is.”
“I had to break in the safe, yeah, and I didn’t leave ’em a trace.”
These are all Young Thug lyrics that prosecutor’s in Georgia categorize as “an overt act in furtherance of a conspiracy,” in the sweeping, 56-count grand jury indictment against the platinum-selling artist and 27 others, accused of being members of an alleged Blood-affiliated and Atlanta-based gang that shares a name with Thug’s record label, Young Stoner Life Records.
The 88-page indictment reveals that Fulton County prosecutors have spent the past nine years scouring the music and social media output of Thug and other alleged YSL members in an attempt to categorize the group as a gang.
An increase in rap lyrics being used as criminal evidence to convict and incarcerate young men of color is well documented in the 2019 book Rap on Trial, by Associate Dean at the University of Georgia, Andrea L. Dennis, and Erik Nielson, a professor of liberal arts at the University of Richmond who specializes in the relationship between Black creative expression and the law in the United States.
“It was actually the work of a colleague of mine in the UK, Eithne Quinn, that got me started,” Nielsen said. “It was around 2010 and she had testified in one or two cases involving Grime lyrics. I thought, ‘If she is finding this in the UK, what do you bet it’s happening here in the incarceration capital of the world?’”
Nielson and Dennis’ research uncovered dozens of instances of prosecutors submitting rap lyrics as evidence in criminal trials dating back to the late 1980s, with overwhelmingly successful conviction rates and cases having only increased since then.
“I just found case after case after case, and I was surprised at two levels,” Nielson said. “That this was happening with such frequency and that nobody was really talking about it. I decided to spend more of my time researching it.”
Thug – born Jeffery Lamar Williams – is accused of being one of the founding members of YSL, and is charged with conspiracy to violate the Georgia criminal racketeering law. Individual charges include murder, attempted robbery, and aggravated assault with a weapon. Georgia prosecutors also charged all 28 defendants with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO).
The charging documents list more than 180 different acts that allegedly aided the collective conspiracy, including instances of alleged members getting YSL tattoos, wearing clothing and accessories that say “slime,” and a small trove of Thug lyrics that prosecutors are likening to gang propaganda.
We recently spoke with Nielson about his work in Rap on Trial, the YSL indictment and the rising trend of rap lyrics being used as evidence in criminal trials.
What were among the first instances of prosecutors in America attempting to use rap lyrics as evidence in a trial? The earliest I know of was in 1992, when Bay Area rapper Mac Dre was convicted of conspiracy to commit bank robbery based partially on evidence gathered from his music.
Erik Nielson: Mac Dre would have been among the first but it wouldn’t have been the first. We do have a federal case in 1991, US v. Foster, where the Court of Appeals for the Seventh Circuit upheld his conviction based partly on rap lyrics he wrote referencing drugs and narcotics trafficking.
What you’re talking about really is the start of this practice, and California really is the epicenter. Partly because you saw the rise of gangster rap and lyrics that could potentially lend themselves to prosecution, and partly because California led the way in anti-gang policing — not only the militarization, but also with these civil injunctions. This combination made for the perfect storm and that’s where it started to get traction. California is still where we see the vast majority of cases.
What are some of the prosecutorial incentives for building a RICO case instead of charging defendants individually?
These RICO laws were developed with organized crime in mind. It really loosens the framework for how you can charge somebody. For example, we saw this with Drakeo The Ruler. If prosecutors can put anyone near something that they label a gang, and then if they can show they had knowledge of a crime or benefited from a crime in any way, then they can cause that person to bear the whole weight of the charge, even if the person didn’t actually commit the crime or crimes in question. It allows prosecutors to create this broad, vast network of individuals that they can then link together under this gang umbrella, even though it’s incredibly arbitrary who is considered a validated gang member or what criteria they use. It becomes very easy for them to go after people when they don’t really have a whole lot of evidence otherwise.
What are your initial thoughts on the YSL indictment?
With 28 co-defendants, the question is going to be who their real target is. There’s no way that all 28 of these people are going to go to trial. They’re going to try and flip as many people as they can using plea deals and whatever else, and that’s going to reveal who they’re really after. And since Young Thug is high profile and wealthy enough, I have to think that he is one of the big fish that they’re hoping to catch.
Especially during times when violent crime is increasing not just in Fulton County but basically everywhere, it really allows police and prosecutors to do something high profile to signal to everybody that they are taking this seriously, that they are going to clamp down on crime. And the celebrity of somebody like Young Thug is just going to raise visibility and awareness toward those efforts. It’s much easier to do this than actually do street level work and get to know communities. Why not just sit there listening to rap videos and surveilling people for a while?
Prosecutors allege that YSL is affiliated with the national Bloods street gang. If true, what does that affiliation look like?
People’s connections to gangs is also something that I don’t think law enforcement really takes into consideration. If you live in an area with gang activity, those are your friends, those are your relatives. Those are the people all around you.
It’s not like it used to be in California where you had these fairly clear designations and controlled territories. What you see now across cities everywhere, even if they are Blood sets or Crip sets, is that it’s diffuse. The gangs aren’t as organized as they used to be.
I actually sat in Fulton County Court testifying in a case like this, and I heard a gang expert say something to the effect that one of the ways prosecutors determine if someone is in a gang is by where they live. It allows them to paint with a broad brush entire neighborhoods as being gang active, and that means anybody — even if it’s your grandmother who lives there — if they wanted to say she was in a gang, it would be pretty easy for them to do that.
You’ve studied these kinds of cases for over a decade. How successful have prosecutors been using this approach? Are they winning cases?
Overwhelmingly, yes. The fight comes at various levels, and I say the fight from the perspective of the defendant. The first battle that most defense lawyers lose is getting the lyrics excluded as evidence. Any decent defense attorney will argue to not bring in that evidence. It’s going to be prejudicial. It’s going to put the defendant at a severe disadvantage.
Then they lose at the trial level because usually, prosecutors win and acquittals are fairly rare — just statistically speaking but also in these cases. Then the final place that you lose usually, is on appeal.
They use this tactic and it works. Then they tell each other and it keeps working. People object but the objections don’t work. The cases survive appeal. If you’re a prosecutor just looking to lock people up why wouldn’t you do this? I mean, other than that you should be trying to seek justice.
When did these types of cases become more commonplace?
The increase in these cases maps pretty closely to the increasing prevalence of social media, and the ability to distribute your music without the traditional gatekeepers: the record labels, radio stations, MTV. Now you can just go to SoundCloud, YouTube, Facebook, which is a good thing in some ways. It allows you to build a fan base without having to go through the traditional and restrictive channels. But at the same time it means there’s so much more out there and it’s so easy for police to just sit there and scan, which is what they do.
I mean, they’ll spend hours doing this, and I know that it’s not always at the point of investigating a crime. It’s often almost like pre-crime; you’re getting on there and it’s like Minority Report. They’re listening to lyrics in anticipation of a crime that has not happened. The amount of confirmation bias that that must create is another conversation. It’s lazy policing.
It’s also connected to the rise in gang units that we’ve seen over the last couple of decades. Units that are often developed in response to a non-existent gang threat but one that you can scare the public with. Those are the two things that I really point to as to why we’re seeing this just explode.
Does this typically happen to artists on the same scale as Young Thug? Is this a tactic also used on rappers who aren’t as commercially successful?
They’re the most vulnerable. That’s what actually has me kind of surprised about Young Thug. Generally speaking, the well known artist – the one that has name recognition, the one that has money – has been typically immune here. Authorities don’t usually go after them for a variety of reasons. It’s going to be harder to convict if the jury knows them and they’d have the money to mount a vigorous defense. This tactic is almost exclusively used on amateurs. Those are the ones who are especially vulnerable because they don’t have the resources.
Young Thug is a pretty big rapper. For them to go after him, it definitely is expanding this practice in worrying ways. They’re brazen. I think it carries risks in a place like Fulton County. I don’t think it’s necessarily going to work out for them. But it may work out for them regardless because even if they don’t get what they want, which is a verdict, they’re still sending a message.
To me, if they really think they can win this, it’s either that they have this really solid case against him, which I doubt given the prevalence of lyrics in these charging papers. Or it’s that they think that the lyrics and his career as a rapper, if they get the right jury, will do the work for them.
In January, you and JAY-Z’s longtime lawyer, Alex Spiro, helped pen a letter urging New York Lawmakers to pass the “Rap on Trial Bill.” The letter was later signed by artists like Jay-Z, Killer Mike, and Fat Joe, among others. Can you talk a little about what cities and states are doing to pass legislation that would dissuade prosecutors from these kinds of predatory practices?
That letter and the proposed New York law was actually inspired by Rap on Trial. Looking for a legislative solution was one of our recommendations at the end of the book. We’re waiting to see if it will go through this session or not. I think it’s vital. I wanted to believe that education alone would solve the problem. I would have expected that because hip-hop became so mainstream not just musically but commercially and linguistically, a certain amount of education would have happened. And yet we’re seeing this continue to increase.
So, education doesn’t seem to be as effective as I would like and these statutory solutions are going to be important. The problem of course, is that we have 50 different states. It’s an uphill climb to imagine getting stuff like this passed. But in populous states like New York and certainly California, it would really put a dent into the practice, and that is absolutely our continued goal.
Donald Morrison is an investigative journalist and music writer who spends his free time combing through court filings. You can follow him on Twitter @DonnyMorrison26.
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Can rap lyrics in a song be used against an artist? That’s just one of the questions centering rapper Young Thug and dozens of associates of his label. They were arrested in Atlanta as part of a 56-count indictment for allegedly violating Georgia's Racketeer Influenced and Corrupt Organizations - better known as the RICO act. Prosecutors have used Young Thug's lyrics to argue that he should be held without bond until his trial. » Subscribe to MSNBC: on.msnbc.com/SubscribeTomsnbc
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Rappers Young Thug and Gunna Face RICO Charges