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The New Press

Andrea L. Dennis presents RAP ON TRIAL in November 2019 at Avid Bookstore in Athens, Georgia. Photo: Alexa Rivera.

Rap on Trial: Conversation with Erik Nielson and Andrea L. Dennis

By | The New Press

By Jeremy Wang-Iverson

Last fall, The New Press published Erik Nielson and Andrea L. Dennis’s Rap on Trial: Race, Lyrics and Guilt in America. The book examines a very specific but insidious action on the part of prosecutors over the past three decades: citing rap and hip-hop lyrics and video in court cases to persuade juries to make convictions. Nielson, associate professor of liberal arts at the University of Richmond, and Dennis, professor at University of Georgia School of Law, offer fascinating legal analysis and cultural criticism in this important contribution to the publisher’s unrivaled list of criminal justice titles. Nielson and Dennis discussed their work, some examples of Rap on Trial in action, how they came to collaborate on this project.

When did each of you first become aware of the extent to which rap lyrics were being used in America’s courtrooms?

Andrea first encountered this tactic in the early 2000s when she was a criminal defense attorney. About five years later the issue landed back on her radar when she was researching connections between hip hop and the law. At that time, she realized the practice was more than just occasional and isolated, leading her in 2007 to publish her law review article entitled Poetic (In)Justice? At the conclusion of the article, she opined that technological advances, such as social media, would facilitate the spread of the practice. She was right. By 2012, it was clear that state and federal law enforcement and prosecutors nationwide were using rap evidence in every phase of the criminal justice process.

Erik has served as an expert witness or consultant in roughly 50 cases involving rap lyrics as evidence. Ironically, his work in U.S. courts began thanks to the work of Eithne Quinn, a British scholar at the University of Manchester, who had begun working on cases in which grime (similar to rap) was being used as evidence in the UK. Suspecting that if the practice was occurring in the UK, it was likely happening in the U.S., Erik began looking. It quickly became clear that it was widespread, but he didn’t appreciate the full scope of the problem until he and Andrea teamed up to begin looking in earnest.

At present they have identified hundreds of cases and suspect that thousands remain hidden from public view.

Rap music is the only fictional musical genre used this way because its primary producers are young Black men, who the criminal justice system happens to target.”

Why are rap lyrics so much more likely to be introduced as evidence than lyrics from other musical genres?

Rap music is the only fictional musical genre used this way because its primary producers are young Black men, who the criminal justice system happens to target. Police and prosecutors highly value statements and conduct by a defendant that can be argued as self-incriminating. Rap lyrics often fit this mold because they are usually written in the first person, and oftentimes focus on criminal themes and use violent imagery. Lyrics that reinforce common narratives and stereotypes that Black men are dangerous criminals are powerful influences on judges and jurors.

Class also plays a factor. Most defendants in these cases are overwhelmingly black or Latino, most of them amateur rappers without the name recognition or financial resources that insulate more prominent artists.

Studies have shown that people perceive the same song lyrics as more damning of the writer when they are told they come from a rap song than a country song—is that because rap is a predominantly African-American genre?

Yes. The lyrics are also perceived as more threatening and in need of regulation. They are also more likely to be read literally. This is thanks to other stereotypes, namely that young Black and brown men are incapable of producing sophisticated art, so their lyrics must be literal. There’s no acknowledgement of their ability to master complex poetics.

Why do prosecutors and juries have so much trouble distinguishing the real and fictional identities of rappers?

Sometimes they’re simply uninformed, or misinformed, about the conventions of the genre, and don’t understand that it is a fictional art form even when based on reality. But in other instances, prosecutors and juries are actually unwilling or unable to accept the idea that an artist—particularly an amateur—is appealing to an audience that craves hyperbole, exaggeration, and realism, and deploying sophisticated artistic strategies to do so. For example, a juror may struggle to reconcile use of the first-person narrative in lyrics with fake personas and false claims of authenticity.

And we can go a step further. In some cases it’s clear that prosecutors and police “gang experts” are knowingly misrepresenting rap music to judges and jurors in order to secure convictions.

What are some of the most common misperceptions about hip-hop that you have encountered?

That it’s all violent and hypersexual. There’s often no understanding that like any major art form, there is variety and rap artists explore a wide range of themes and ideas in their music.

Another is that it’s not music. Another is that it’s definitely not poetry.

For our purposes, the most important misperception—aside from the idea that rap lyrics are autobiographical—is that rap perpetuates violence. The history of rap music, as well as hip hop culture generally, tells a very different story.

You write that famous rappers have found it easier to defend their lyrics in court. Why is that? And should it matter to the court whether lyrics were written by a professional or amateur rapper?

One explanation is that money buys justice. Well-resourced defendants have always fared better in the criminal justice system. Another explanation is that people generally believe that a famous or commercially successful artist is a true creative—not just spinning real life tales in musical form. But up-and-coming amateur artists are perceived as writing lyrics that are simplistic, rough, and crude.

What are some of the ways prosecutors use rap lyrics in criminal trials?

  • As evidence of a true threat directed at someone else. (That’s when the lyrics themselves are the crime).
  • As confessions.
  • As evidence of a person’s motive or identity with respect to a crime.
  • In many, many cases, to establish gang affiliation.

And in a new spin, we’re beginning to see prosecutors who allege that, even though a defendant did not personally commit a criminal act (e.g., homicide, assault, drug distribution), the defendant should be convicted of conspiracy because he wrote lyrics that described, encouraged, or facilitated a gang’s criminal acts.

We hope this book serves as a wake-up call to criminal defense attorneys who are not aware of the issue or how to battle back.”

Have judges set any limits to how rap lyrics can be used at trial?

Overwhelmingly, judges have set very few limits. They’ve uniformly rejected constitutional arguments that would preclude using these lyrics as evidence and rarely bar their use during trails. Defendants generally prevail only in extreme cases such as when prosecutors violate court rulings or make highly inflammatory arguments based on the rap lyrics being used as evidence.

What can defense lawyers do to fight back against the use of rap lyrics to prosecute their clients?

We hope this book serves as a wake-up call to criminal defense attorneys who are not aware of the issue or how to battle back. Luckily, there are many tools available to challenge the practice in criminal court. One of the easiest approaches is for a defense attorney to use an expert to counter the often- demonstrably-false narratives of police and prosecutors, who generally know next to nothing about rap music.

But alongside litigation, attorneys must work to draw public attention to the practice and the injustices it causes. We believe that they can play a significant role in educating judges and citizens, i.e., potential jurors, of the extent and perils of the practice.

Are there any potential legislative solutions to the problems you outline in this book?

We call on legislatures nationwide to rely on the First Amendment to enact rules shielding rap music, a form of expressive speech, from being used against artists to impose criminal penalties on them. We call these protections rap shield rules.

Buy the book from Bookshop.org.

Erik Nielson is an associate professor of liberal arts at the University of Richmond, where he teaches courses on African American literature and hip-hop culture. He lives in Richmond, Virginia and Brooklyn, New York. Follow Erik on Twitter: @ErikNielson

Andrea L. Dennis holds the John Byrd Martin Chair of Law at the University of Georgia School of Law and was formerly an assistant federal public defender. She lives in Athens, Georgia. Follow Andrea on Twitter: @ProfALDennis

Sociologist in Davos

By | The New Press | No Comments

Arlie Hochschild is in Davos this week, attending the Annual Meeting of the World Economic Forum. The theme of this year’s meeting is “creating a shared future in a fractured world,” and she will participate on several panels to discuss variations on this theme with a wide range of thinkers, including Atul Gawande, Yuval Noah Harari, and Yo-Yo Ma. Since the publication of Strangers in Their Own Land in September 2016 – the paperback will be published next month by The New Press – Hochschild has spoken with many groups working to heal the partisan divide in our country, as she explains in this piece she wrote last week for Time.com:

Signs of a desire to reach out extend far beyond my inbox and living room. Listed on the website of the Bridge Alliance, a non-profit non-partisan umbrella group, are over seventy-cross partisan groups based in towns scattered across the country with such names as Common Good, Better Angels, American Public Square, AllSides. Virtually all of these small groups rose from local efforts to restore a culture of respect while exploring potential points of agreement. Common ground is there to be explored.

Early 2018 Projects

By | Fence Books, Johns Hopkins University Press, The New Press | No Comments

A Mouth Is Always Muzzled
by Natalie Hopkinson
(February 6 2018, The New Press | Art)
Natalie Hopkinson’s new book considers the possibility of art to serve as a catalyst for political change. She profiles six artists with ties to her native Guyana and shows the risks, yet vital importance, of creating work that challenges the establishment and individuals in power. Hopkinson, former editor of The Root, is assistant professor of communications at Howard University.

“This is a singular book, one that is not conventionally academic nor a conventional travel narrative nor a conventional work of arts criticism nor even a conventional piece of journalistic reportage, yet it draws from all of those disciplines as a deeply felt and passionately expressed manifesto
…an impressively rendered story about imperialism in general and cultural imperialism in particular.”
—Kirkus (starred review)

*****

Strawberry Fields by Hilary Plum
(April 24 2018, Fence | Fiction)
Hilary Plum’s new novel follows a journalist investigating the deaths of five veterans and switches between a multitude of voices that capture the injustice, conflict, and grief since the War on Terror. Plum is associate director of Cleveland State University’s Poetry Center, co-edits with Zach Savich the Open Prose Series for Rescue Press, and is the author of Watchfires and They Dragged Them Through the Streets.

“Few American books have as truly global a perspective as Hilary Plum’s second novel, which ranges over remarkably disparate territories with exemplary economy of means, and holds together not only aesthetically but also as a vision for our times…it achieves the seemingly impossible virtue of being a political book without a hint of polemic.”  —Youssef Rakha, author of The Crocodiles

*****

The Kremlinologist
by Jenny Thompson & Sherry Thompson (March 25 2018, Johns Hopkins | History)
Llewellyn E. Thompson was stationed in Moscow during the Cuban Missile Crisis as Ambassador to the Soviet Union and advised President Kennedy on responding to Nikita Khrushchev. With The Kremlinologist, his daughters Jenny and Sherry Thompson have written his definitive biography, published in the Johns Hopkins Nuclear History and Contemporary Affairs Series.

“Both an intimate portrait and an insider’s account of life in Moscow during the Cold War, it reveals new and fascinating details about the many US–Soviet crises that Thompson helped to resolve during the Eisenhower, Kennedy, and Johnson administrations.”
—Martin J. Sherwin, coauthor of American Prometheus: The Triumph and Tragedy of J. Robert Oppenheimer

Congresswoman DeLauro’s Fall Tour

By | The New Press | No Comments

Rosa L. DeLauro, who has represented Connecticut’s third district as a Democrat since 1991, begins a national book tour today to discuss The Least Among Us. Tour dates are below. The book, published by The New Press earlier this year, details her legislative battles, while weaving in the personal stories and family history which have influenced her admirable career fighting for important causes that affect the lives of Americans: food stamps, early childhood education, improving healthcare, infrastructure, affordable higher education, and more. When Congresswoman DeLauro appeared on Meet the Press Daily in early June soon after The Least Among Uswas published (clip below), Chuck Todd called the book “a progressive populist manifesto.”

As she writes in the introduction, Congresswoman DeLauro was inspired by her mother Luisa, who served on New Haven’s Board of Aldermen for 35 years, in her work to help the vunerable: “Neighbors came to our house to discuss all manner of problems, while Luisa served coffee and baked cream puffs. Our kitchen table was my parents’ office and nobody gave a second thought to dropping by.” Mrs. DeLauro lived in New Haven all her life and passed away earlier this month, September 9, at the age of 103.

In his eulogy as reported in the New Haven Register, former Senator Christopher Dodd – for whom Congresswoman DeLauro served as campaign manager in 1980 and then later as his Chief of Staff – said about Mrs. DeLauro: “She never stopped championing the cause of those who were less fortunate.”

9/19 Roosevelt Institute – New York, NY.

10/3 SKDKnickerbocker – Washington D.C.

10/4 Georgetown University, Institute of Politics – Washington D.C.

10/5 R.J. Julia at Wesleyan University – Middletown, CT.

10/6 La Grua Center (co-sponorored by Bank Street Books) – Stonington, CT.

10/7 Barnes and Noble – Waterbury, CT.

10/16 University of Chicago, Institute of Politics – Chicago, IL.

10/17 Town Hall Seattle – Seattle, WA. (with Congresswoman Pramila Jayapal)

10/18 University of Southern California, Unruh Institute of Politics – Los Angeles CA.

11/10 National Press Club Book Fair – Washington D.C.

11/17 Tattered Cover – Denver, CO.

11/18 Miami Book Fair – Miami, FL.

FAMILY VALUES by Melinda Cooper (University of Sydney) and PORTFOLIO SOCIETY by Ivan Ascher (University of Wisconsin-Milwaukee), published by Zone Books in the Near Futures Series and designed by Julie Fry.

2017 Projects (Part I)

By | The New Press, West Virginia University Press, Zone Books | No Comments

This year I have been pleased to collaborate with authors and publishers releasing new books that I greatly admire. A selection of my non-fiction projects are highlighted below (another post will soon follow featuring the two novels and a memoir I am publicizing):

For The New Press (founded in 1992 by Andre Schiffrin whose The Business of Books I read a year or two ago and thought a lot about since) I have been working with Arlie Russell Hochschild on her recent book Strangers in Their Own Land, a New York Times bestseller and finalist for the National Book Award, continuing a publicity campaign begun by Angela Baggetta. Also for The New Press, I have been the publicist on the latest entry in their stats series – LGBTQ Stats by David Deschamps and Bennett Singer – an exhaustive almanac-style guidebook that M.V. Lee Badgett calls “the most comprehensive portrait of LGBTQ life around.”

Zone Books, a scholarly publisher in the humanities and social sciences with an office in Windsor Terrace, Brooklyn, recently launched the Near Future Series, edited by Wendy Brown and Michel Feher, and I am helping to promote the second and third volumes: Ivan Ascher’s Portfolio Society and Melinda Cooper’s Family Values. The series is looking at the effects of neoliberalism in the past 30 years, with Ascher analyzing the role of finance and Cooper arguing that neoliberalism aligned with social conservatism towards the end of the 20th century.

I’m also very much looking forward to the publication of Marked, Unmarked, Remembered (West Virginia University Press) this fall, what promises to be a beautiful book of photographs by Andrew Lichtenstein with an introduction and essays by leading historians edited by his brother Andrew Lichtenstein, chronicling historical sites of American social conflict. I have known Derek Krissoff, the director of the press, for many years now and glad to have an opportunity to work with him and his colleagues on their lead title this fall.

“MARKED, UNMARKED, REMEMBERED is startling and extraordinary…this book is a true gift. It both unsettles our sense of who we thought we were, and it makes us see the imperative of forging a more just future for all.” -Heather Ann Thompson, author of Blood in the Water, winner of the 2017 Pulitzer Prize for History.