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Toward a Hip-Hop Theory of Punishment

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Toward a Hip-Hop Theory of Punishment ARTICLES Much Respect: Toward a Hip-Hop Theory of Punishment PaulButler Introduction: The Hip-HopNation 984 I. Popular Culture and Criminal Law 987 II. Hip-Hop 101 989 A. Hip-Hop's Influence: Consumers 992 B. TheAcademy 993 C. Hip-Hop as a Political Movement 994 D. TheLimits of Hip-Hop's Influence 995 III. Hip-Hopand Social Norms 996 IV. Punishment: The Remix 999 A. WhyPunish? 1001 1. Retributionand respect in hip-hop 1002 2. Hip-hop utility: Thirdparty interestsand the effects of mass incarceration. 1005 B. Whatto Punish? 1007 1. Who'sbad? 1007 2. Hip-hop and drugs: Keeping it real 1009 How to Punish? 1011 1. Punishmentfrom inside 1011 2. Prison 1013 Conclusion: Word Is Born 1015 * Professorof Law,The George Washington University Law School. This Article was presentedas a work-in-progressat WashingtonUniversity School of Lawand at a Stanford LawReview Symposium. I thank the participants in thoseevents. Special shout out to Daniel Solove.Mad props to ChristopherBracey, Kimberly Jade Norwood, and Dorothy Roberts. Big up to my researchassistants Jeremy Medovoy, Michael Robinett,and Eduardo Rodriguez. 983 984 STANFORDLAW REVIEW [Vol. 56:983 If I ruledthe world,imagine that . I'd open every cell in Attica,send 'em to Africa.. If I ruledthe world,imagine that I'd free all my sons, I'd love 'em love 'em baby - Nas1 Introduction: The Hip-Hop Nation2 This Article imagines the institution of punishment in the hip-hop nation. My thesis is that hip-hop can be used to inform a theory of punishment that is coherent, that enhances public safety, and that treats lawbreakers with respect. Hip-hop can improve the ideology and administration of justice in the United States. For some time the debate about why people should be punished has been old school: Each one of four theories of punishment- retribution, deterrence, incapacitation, and rehabilitation- has acceded to prominence, and then lost its luster. Hip-hop offers a fresh approach. It first seems to embrace retribution. The "unwritten law in rap," according to Jay-Z, is that "if you shoot my dog, I'ma kill yo' cat ... know dat/ For every action there's a reaction."3 Next, however, comes the remix. Hip-hop takes punishment personally. Many people in the hip-hop nation have been locked up or have loved ones who have been. Punishment is an exercise of the state's police power, but it also implicates intimate family relationships. "Shout outs" to inmates- expressions of love and respect to them- are commonplace in the music and visual art. You understand criminal justice differently when the people that you love experience being "locked down all day, underground,neva seein' the sun/ Vision stripped from you, neva seein' your son."4 The hip-hop theory of punishment acknowledges that when too many people are absent from their communities because they are being condemned by the government, prison may have unintended consequences. Retribution must be the object of punishment, but it should be limited by important social interests. In a remarkable moment in American history, popular music is 1. Nas, If I Ruled the World, on It Was Written (Sony Records 1996) (lyrics available at Original Hip-Hop (Rap) Lyrics Archive, at http://www.ohhla.com/anonymous/ nas/written/ruled.nas.txt(last visited Mar. 28, 2004)). 2. The hip-hop nation consists of artists, students,workers, activists, and scholars. For a discussion of the distinction between the hip-hop generationand GenerationX, see Gary Mendez, Confessions of a Gen Xpatriate: Pledging Allegiance to the Hip-Hop Generation, at http://www.horizonmag.eom/3/gen-xpatriate.asp(last visited Mar. 28, 2004). 3. Jay-Z, Justify My Thug, on The Black Album (Roc-A-Fella Records 2003) (lyrics available at Original Hip-Hop (Rap) Lyrics Archive, at http://ohhla.com/anonymous/ jigga/theblack/justify.jyz.txt(last visited Mar. 4, 2004)). 4. Beanie Sigel, WhatYour Life Like, on The Truth (Def Jam Records 2000) (lyrics available at Original Hip-Hop (Rap) Lyrics Archive, at http://ohhla.com/anonymous/ beanie/thetruth/whatlife.sig.txt(last visited Mar. 7, 2004)). April 2004] TOWARDA HIP-HOP THEORYOF PUNISHMENT 985 weighing the costs and benefits of punishment. As we listen to the radio, watch music videos, dance at clubs, or wear the latest fashion, we receive a message from the "black CNN."5 Hip-hop exposes the current punishment regime as profoundly unfair. It demonstrates this view by, if not glorifying law breakers, at least not viewing all criminals with the disgust which the law seeks to attach to them. Hip-hop points out the incoherence of the law's construct of crime, and it attacks the legitimacy of the system. Its message has the potential to transformjustice in the United States. Hip-hop already has had a significant social impact. It is the second best- selling genre of music in the United States.6 The culture transcends rap music: It includes television, movies, fashion, theater, dance, and visual art. Hip-hop is also big business: Estimates of its contribution to the U.S. economy range to the billions.7 Increasingly, hip-hop is also a political movement. Hip-hop foreshadows the future of the United States- one in which no racial group will constitute a majority.8 It is the most diverse form of American popular culture. The most commercially successful hip-hop artists in the United States are black, though there are popular white and Latino acts as well.9 The 5. The phrase comes from Chuck D, of the rap group Public Enemy. See The History of Hip-Hop, at http://www.headbob.com/hiphop/hiphophistory.shtml(last visited Mar. 28, 2004). 6. See Matt Benz, Rock Still the Top-Selling Genre, Billboard, Mar. 31, 2001, at 6, 86 (explaining that hip-hop overtook country music as the second most popular genre of music); Todd Martens,Rock Tops RIAAPoll, Billboard, May 31, 2003, at 74 (reporting that the market share of rap/hip-hopgrew from 11.4% to 13.8%, second only to rock). In 2003, for the first time, the top ten songs on the Billboard Hot 100 were all by African American artists. Gail Mitchell, Black-Music's Historic Week: Hot 100 Testifies to Mainstreamingof R&B/Hip-Hop, Billboard, Oct. 18, 2003, at 20. 7. See Alan Hughes, Hip-Hop Economy, Black Enterprise, May 2002, available at http://www.blackenterise.com/Pageopen.asp?Source-Articles/01012002ah.html (last visited Mar. 28, 2004) (describingthe money generatedby various hip-hopbusinesses). 8. See U.S. Census Bureau, Projections of the Resident Population by Race, Hispanic Origin and Nativity: Middle Series, 2050 to 2070, available at http://www.census.gov/population/projections/nation/summary/np-t5-g.text(last visited Mar. 28, 2004) (reportingthat in 2050 almost 50% of Americanswill be either African American, Hispanic,Asian American,or Native American). 9. See Lynette Holloway, TheAngry Appeal of EminemIs CuttingAcross Racial Lines, N.Y. Times, Oct. 28, 2002, at Cl (noting how "[t]hree decades [after the creation of hip- hop], the No. 1 selling rapperin the country is a 30-year-old white man, Eminem");Brad Tyler, Houston: A Hot Spot for Hip-Hop; The Scene on Rap 's Third Coast Benefitsfrom Local and Latino Support, Billboard, Sept. 23, 2000, at 32 (describing the influence of Latino Rap in Houston). Asian hip-hop artists have also made inroads. Chinese-American rapper Jin won BET's recent rap contest. His debut album is highly anticipated. See Raymond Fiore, Jin 's Bad Rap: Is This Asian-AmericanMC 's Debut Making History or Rehashing Old Stereotypes?, Ent. Wkly., Feb. 13, 2004, at L2T3. Best-selling singer Sean Paul, known for blending Jamaicandancehall music with hip-hop, is half Chinese. Shelah Moody, Jamaica Meets Hip-Hop: Dance Hall Fuses Styles and Finds an Audience, S.F. Chron., Mar. 23, 2003, at 27 (explaining that "Sean Paul has a unique, racially ambiguous look (he is black, Portugueseand Chinese) that various ethnic groups can identify with"). 986 STANFORDLAW REVIEW [Vol. 56:983 consumers are mainly non-black.10 The producers are Asian, black, Latino, and white- and combinations of all of those. The Neptunes, among hip-hop's most acclaimed producers, consist of Chad Hugo, a Filipino American, and Pharrell Williams, an African-Korean American. Indeed, the borders of the hip-hop nation are not concurrent with the borders of any nation-state. The culture is international,with particularly strong variants in Africa, Brazil, the Caribbean, Western Europe, Southeast Asia, and Japan.11 At the same time that an art form created by African American and Latino men dominates popular culture, African American and Latino men dominate American prisons.12 Unsurprisingly then, justice - especially criminal justice - has been a preoccupation of the hip-hop nation. The culture contains a strong descriptive and normative analysis of punishment by the people who know it best. Bold, rebellious, often profane, the music has multicultural detractors as well as fans. One need not like hip-hop, however, to appreciate its potential to transform. Imagine, for example, that television situation comedies consistently critiqued the government's foreign policy, that country music ridiculed the nation's health care, or that fans at professional sports events were warned that the government was exploiting them. We would anticipate a strong response from the state if powerful critiques of it were widely disseminated. These scenarios are hard to imagine because most of American popular culture is explicitly apolitical. Moreover, there probably would be widespread disagreement among the producers and consumers of the culture about what politics to advocate. Hip-hop culture is different. Often it is explicitly political.
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