Mac Phipps spent 21 years in jail for a killing he did not commit. Louisiana convicted Phipps with no priors, no physical evidence and conflicting eyewitness accounts. Another man even confessed to the crime. With such scant evidence connecting Phipps to the crime, the state relied heavily on Phipps’ rap lyrics, which the prosecutor took from two different songs, splicing them together and altering them to portray Phipps as a violent predator.

After years of public outcry about the unjust conviction, Louisiana Gov. John Bel Edwards granted Phipps clemency in 2021. The state went even further in 2023 by passing a law to prevent the improper use of lyrics or other forms of creative expression as evidence.

Maryland must be next in passing legislation to prevent such injustices and ensure that creative expression is not only protected but encouraged.

With rap lyrics targeted in prosecutions, issues of racial and cultural bias have emerged. Researchers have found roughly 700 cases nationwide in which rap lyrics have been used as evidence. And this is based on publicly available information, most of it from trial records. The true number of cases is probably much higher because the vast majority of cases never see the inside of a courtroom and are instead settled by plea agreements.

Indictments and juvenile proceedings also take place out of the public eye. But based on the cases that have been identified, it’s clear that these lyrics are used at all stages of the criminal justice process — as a means to bring charges, secure indictments, conduct trials, compel plea bargains or even suggest sentencing to a jury or judge.

The racial data is alarming. While a myriad of genres of music and other art forms contain references to drugs and violence, only rap music is targeted this way in court, and this affects Black and brown musicians at an overwhelming rate. And it’s the racialized nature of this practice that makes it so dangerous. Police and prosecutors, presenting rap lyrics as autobiography rather than fiction, often end up playing upon stereotypes about the criminality of young men of color. As one district attorney wrote in a training manual for prosecutors, rap lyrics can and should be used to “invade and exploit the defendant’s true personality.”

Research tells us why using rap lyrics this way jeopardizes a defendant’s right to a fair trial. Studies have shown that not only can rap lyrics exert a highly prejudicial impact on potential jurors but also that violent lyrics are considered significantly more dangerous, offensive and literal when associated with rap compared to other genres seen as traditionally white, such as folk or country music. It’s no surprise, then, that prosecutors are eager to put these lyrics in front of a jury, especially when they have a weak case otherwise. To quote University of Georgia law professor Andrea Dennis, “[w]hen courts permit the prosecutor to admit rap music lyrics as criminal evidence, they allow the government to obtain a stranglehold on the case.” This should concern anyone who looks to our courts to deliver fair and just outcomes.

Maryland has been at the forefront of criminal justice reform in recent years. We have led the nation in police reform and in recent years have made significant strides in improving our policies for returning citizens. As a state, we must continue to be the example by joining the other handful of states that have embarked upon protecting artistic expression from being improperly used as evidence.

Sen. Nick Charles, who represents Prince George’s County, has joined our effort in the House of Delegates and introduced a companion bill in the Senate (HB1429/SB662), Protecting the Admissibility of Creative Expression Act, to protect creative expression but also ensure accountability for those misusing art to perpetuate crime. Under the legislation, creative expression, as defined in the PACE Act, would only be allowed as evidence if the state demonstrates that the expression is:

• literal or meant to be literal.
• refers to the specific crime in question.
• is relevant to a disputed issue of fact.
• has probative value that cannot be obtained by other means.

The new law would provide transparency and fairness in determining whether lyrics or other forms of creative expression should be admitted. Lastly, the bill closely follows Maryland’s court decision in Montague v. Maryland, where the Court of Appeals created a similar test for the admittance of lyrics in a murder trial. Moving forward, we need a reasonable test as to how lyrics and other forms of creative expression can be used and ensure any bias is not introduced.

The PACE Act has bipartisan support and has been supported by the Recording Academy; the Recording Industry Association of America; Warner Music Group; Kevin Liles, chairman and CEO of 300 Entertainment music group and legendary Maryland music mogul; Songwriters of North America; Black Music Action Coalition; the NAACP of Maryland and others.

Similar legislation in other states has been supported by artists such as Jay-Z, Meek Mill, Kelly Rowland, Fat Joe and others. If the PACE Act is passed, it will be the first measure of its kind approved on the East Coast and will ensure Maryland remains a leader in ensuring our laws and systems are just, fair and equitable for all.

Del. Marlon Amprey represents District 40 in Baltimore. Erik Nielson is a professor at the University of Richmond and the author of “Rap on Trial: Race, Lyrics, and Guilt in America.”