Rap lyrics are fiction — but prosecutors are treating them like admissions of guilt

For nearly 15 years, rapper McKinley "Mac" Phipps, once a rising star on the famed No Limit Records label in New Orleans, has been locked up in a Louisiana prison, serving a 30-year sentence for the murder of a young fan at a February 2000 concert. Phipps always has maintained his innocence.

Over the past few months, a number of stories about Phipps's case have emerged, including an eye-opening series by David Lohr in the Huffington Post, which raise serious questions about his conviction. These pieces paint a frightening picture of police intimidation, witness coercion, and outright bigotry. They also reveal the extent to which authorities systematically targeted Phipps and other rappers in the New Orleans area, using their power to silence artists whose music and success challenged entrenched racial, economic, and political hierarchies.

Phipps's case is unsettling because a potentially innocent man has spent almost half his life behind bars. But it's also disturbing because it is part of a long history of law enforcement unfairly targeting black artists, not just in New Orleans but across the country.

Police have been going after rappers for decades

Police have a long and well-documented history of antagonism toward rappers, frequently singling them out for surveillance and harassment. One of the most notorious examples goes back to 1988, when N.W.A. released "Fuck tha Police," a song that criticized discriminatory police practices and contained graphic depictions of vengeance with lines like "A young nigga on the warpath /and when I'm finished, it's gonna be a bloodbath / of cops dyin' in LA."

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In response, Milt Ahlerich, assistant director of the FBI, sent a letter to N.W.A.'s label, Ruthless Records, expressing his displeasure "on behalf of the entire law enforcement community." His letter helped trigger a reaction from police departments across the country, which worked collectively to disrupt N.W.A.'s concerts — at one point, Detroit police stormed the stage to prevent N.W.A. from playing the song — and helped set a precedent for the attempts by police, still common today, to prevent rap performances in their jurisdictions.

Even rappers who took less confrontational stances against police could find themselves on the wrong side of the law. In the late 1980s and early 1990s, for instance, artists such as LL Cool J and 2 Live Crew were arrested for obscenity when they performed songs that local authorities deemed too sexually graphic. At the same time, high-profile politicians and public figures like Tipper Gore, wife of then–Vice President Al Gore, were attacking rappers like Ice-T for the "vileness" of their messages.

This kind of institutional hostility toward rappers is hardly a thing of the past. In 2004, for instance, the Miami Herald revealed that police departments across the country maintain task forces — sometimes dubbed the "hip-hop cops"— that monitor, and often harass, hip-hop performers and their fans. In his 2010 book Decoded, Jay Z recounts being followed by the hip-hop cops for years, arguing that "law enforcement treats rap like organized crime."

Unfortunately, in many instances law enforcement really does treat rap like crime. As we have noted before, we've seen a troubling increase in the number of cases in which prosecutors introduce rap lyrics as evidence of a crime, (mis)representing the lyrics as autobiography or confession in order to secure convictions when other, more traditional forms of evidence are lacking. While it's difficult to know how often rap shows up as evidence, because legal proceedings are not archived or published in a uniform way, we have identified hundreds of cases so far, and we suspect that's just the tip of the iceberg. What we know for certain, and what empirical research demonstrates, is that rap lyrics are highly prejudicial, so when they are put before a jury the consequences are often devastating for defendants.

McKinley Phipps appears to be one of the casualties. Not only is there evidence that police singled him out even as facts pointed elsewhere, but when the case went to trial the prosecutor repeatedly focused on Phipps's fictional rap persona. His opening statement, for instance, began with, "Murder, murder, kill, kill. Pull the trigger, put a bullet in your head." These lyrics, deceptively spliced together from two different songs and then misquoted, were taken from Phipps's album Shell Shocked, and they resurfaced at various times throughout the prosecutor's case.

With no physical evidence connecting Phipps to the crime, multiple eyewitnesses identifying a different shooter, and even a confession to the crime by another man, the prosecutor went after Phipps's art, relying on a tactic that dates back to the Jim Crow South: he punished black speech.

Stackolee to gangsta rap: how black artists fought back against racism

Indeed, Phipps's arrest and prosecution are disturbingly reminiscent of the relationship between black expression and police repression that was commonplace in the American South in the decades after Reconstruction, a period during which law enforcement played a central role in silencing, and frequently terrorizing, black Americans.

As a new report by the Equal Justice Initiative reveals, between 1877 and 1950 nearly 4,000 black men and women were lynched in the South, often for speech that whites deemed profane or disrespectful, while police and courts did nothing to punish the offenders. The message was clear: the "wrong" kinds of black speech could be punished, severely.

And yet blacks found ways to speak out just the same, in many cases through art. It is no coincidence, for example, that during the early decades of Jim Crow, a number of folk tales began to appear, cropping up in the Deep South and circulating orally throughout the African-American community. These tales, or toasts, were early prototypes for rap: they were told in rhymed form, they could be bawdy and profane, and they celebrated the clever underdog who outwitted his opponent or the hero who inspired fear in those who dared oppose him. They were a form of resistance, antidotes to the realities of life that gained popularity in large part because they offered a narrative of black strength in the face of everyday suffering.

(PYMCA/UIG via Getty Images)

The most famous of these toasts was "Stackolee" (alternatively spelled as Stagger Lee or Stagolee), a tale told from the perspective of a larger-than-life outlaw who kills without remorse, brags of his sexual exploits, and makes the authorities tremble at the mere sound of his name. In one version, for example, after being disrespected by a bartender, Stackolee says, "I knowed right then that chickenshit was dead / I throwed a .38 shell through his motherfuckin' head." In another version, when the sheriff is summoned to arrest Stackolee, he refuses, saying, "My name might begin with an S and end with an F / But if you want that bad Stackolee you go get him yourself."

"Stackolee" has become well-known, retold countless times by musicians ranging from Ma Rainey and Duke Ellington to Woody Guthrie and Bob Dylan. But more important is that he became the prototypical "bad man," an influential figure of rebellion and irreverence that can be found throughout African-American literature, film, and music. No genre illustrates this influence better than rap music, particularly the violent subgenre known as "gangsta" rap that Phipps and other rappers on No Limit Records were known for.

Gangsta rap took shape in the late 1980s as a response to the harsh realities of urban life, which included persistent poverty, violence, and police brutality. Drawing on the figure of Stackolee and other incarnations of the "bad man," rappers such as Ice-T, Ice Cube, and Snoop Dogg crafted a form that gave voice to the dire conditions in America's inner cities, all while constructing themselves as figures of power within these urban spaces.

As gangsta rap exploded in popularity (and profitability), it began to take on a certain irony for the young men and women who performed it: while the lyrics depicted and often celebrated violence, the genre became a legitimate career path, offering a way out of the bleak environments portrayed in the music.

"I have my whole life been afraid of the police"

However, when it comes to rap, many people fail to recognize the fundamental distinction between artist and art, author and narrator, making it all too easy to assume that gangsta rappers are the criminals they portray in their rhymes. Killer Mike, one of the authors of this article, says he experiences this all the time, often because people assume his stage name is meant to imply that he's actually a killer, rather than what the name is meant to express — that he metaphorically kills microphones with his lyrics.

As he notes, people don't make the same assumptions about white groups like the Killers. Instead, he says, "It only seems to apply in an unfavorable manner when you're talking about a 6-foot-3 black guy. And I think that has everything to do with the preconceptions and the prejudices and the bigotry that people bring to the table. It has little or nothing to do with my name."

As Mike points out, the same prejudices and bigotry that he and other rappers face are part of a much broader targeting of young men of color by law enforcement. Even as the son of a police officer, Mike says he still fears the police. "I worry about law enforcement because I'm a black man in America. I have my whole life been afraid of the police. For me it is normal to be as afraid of the police and have fear and trepidation as one who has experienced any kind of abuse would be in the presence of an abuser."

It is a fear McKinley Phipps knows all too well, having spent almost 15 years in a cell, in large part because his art was put on trial. He is not alone; there are more than 700,000 black men behind bars. But it is hardly a surprise that the young men of color who have used rap music to challenge America's unjust justice system are the ones who are finding their words criminalized and their voices silenced. It's a steep price to pay for art — but it's a price rappers have been paying for years and, unfortunately, will continue to pay for years to come.