Much respect: toward a hip-hop theory of punishment.

• Author: Butler, Paul

INTRODUCTION: THE HIP-HOP NATION I. POPULAR CULTURE AND CRIMINAL LAW II. HIP-HOP 101 A. Hip-Hop's Influence: Consumers B. The Academy C. Hip-Hop as a Political Movement D. The Limits of Hip-Hop's Influence III. HIP-HOP AND SOCIAL NORMS IV. PUNISHMENT: THE REMIX A. Why Punish? 1. Retribution and respect in hip-hop 2. Hip-hop utility: Third party interests and the effects of mass incarceration. B. What to Punish? 1. Who's bad? 2. Hip-hop and drugs: Keeping it real C. How to Punish? 1. Punishment from inside 2. Prison CONCLUSION: WORD IS BORN If I ruled the world, imagine that ... I'd open every cell in Attica, send 'em to Africa.... If I ruled the world, imagine that I'd free all my sons, I'd love 'em love 'em baby --Nas (1) INTRODUCTION: THE HIP-HOP NATION (2)

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 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 transform justice 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 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. Its politics are not always easy to determine, and on some issues there is great diversity of opinion. On the fairness and utility of American criminal justice, however, the hip-hop nation speaks as one. In the contemporary history of the United States, it is hard to recall another dominant form of popular culture that contains such a strong critique of the state.

Many seem to be listening. The hip-hop nation is gaining political power, and seems more inclined to use it than has historically been the case with youth or artists. I do not suggest, however, that the hip-hop nation will be a potent voting bloc in the near future. (13) My claim is normative. Hip-hop culture makes a strong case for a transformation of American criminal justice: It describes, with eloquence, the problems with the current regimes, and articulates, with passion, a better way. Its message is one that we should heed for reasons both moral and utilitarian. (14)

This Article proceeds as follows. In the next Part, I discuss the relationship between popular culture and criminal law. Part II provides a short history of hip-hop culture, with special attention to the rule-breaking that attended the culture's birth. Part III describes hip-hop's relevance to the the current debate in criminal law scholarship about social norms. Part IV sets forth several elements of a hip-hop theory of criminal law. The Article concludes by comparing hip-hop justice with constructs of justice found in civil rights and critical theory.

1. POPULAR CULTURE AND CRIMINAL LAW

   There is a symbiotic relationship between culture and law. Culture shapes the law, and law is a product of culture. Television, for example, has profoundly informed our perceptions of criminal justice in the United States. Most Americans can recite the Miranda warnings, not because they have been arrested, but because television cops advise television "bad guys" of their constitutional rights several times a day.

   Television news programs are dominated by stories about crime. (15) The message conveyed is that "street" crime is a major threat to our well-being. (16) The main perpetrators, the news programs suggest, are African American and Latino men. Politicians respond to the purported crisis by getting tough on crime, which includes building more prisons, instituting more severe sentences, imposing harsh punishments upon recidivists, eliminating the discretion of judges to reduce punishment, and federalizing many crimes. (17) One effect of these laws is the disproportionate incarceration of African Americans and, to a lesser extent, Latinos.

   Some scholars and activists have suggested that the effect of the cultural depiction of crime is that many Americans have exaggerated concerns about being victimized by black and Latino men. (18) Some lawmakers seem to exploit these concerns for political reasons. (19) One result is that some punishment seems driven by racial stereotypes. (20)

   The most frequently cited contemporary example is harsher federal penalties for crack cocaine than powder cocaine. (21) Crack cocaine is powder cocaine that is cooked with baking soda until it forms small solid pieces. Crack is smoked rather than inhaled. It is less expensive than powder cocaine and has a briefer intoxicating effect.

   A star basketball player, Len Bias, died as a result of a cocaine overdose in 1986. (22) He was presumed to have ingested crack, although there was actually no evidence as to what form of cocaine he had consumed. Bias was African American, and crack cocaine was thought to be the preferred form in the black community. (23) Bias' death focused the media's attention on crack cocaine. Congress responded with one of the most severe punishment schemes for a drug in American history. (24) It instituted a mandatory sentence for possession of crack cocaine, but not powder cocaine. The punishment for sellers was especially harsh. To receive the same sentence as a crack distributor, a powder distributor must possess one hundred times the quantity of cocaine. (25) For example, the distributor of five grams of crack, which is enough for 25 doses and has a street value of approximately $500, receives the same sentence as the distributor of 500 grams of powder, which is enough for 3000 doses and is worth $40,000.

   There is little scientific support for the proposition that crack cocaine merits more punishment than powder on a harm principle, and virtually no...