California rapper Brandon Duncan (stage name, Tiny Doo) is now facing 25-years to life for writing lyrics for a music album that law enforcement officials claim “promotes criminal conduct.”
Duncan’s latest album, No Safety, contains lyrics about Duncan’s life growing up in a San Diego neighborhood around gang members, and displays cover art featuring a gun and bullets on the cover.
Duncan was arrested and charged in the wake of a series of nine shootings in a San Diego neighborhood used by the Lincoln Park Gang. He was not accused of committing the shootings, participating in them or any physical violence – just for writing/producing the rap album.
It’s “absolutely unconstitutional,” says Duncan’s lawyer Brian Watkins, who believes the City of San Diego is wasting taxpayer money for using an old 2000 law to charge and prosecute Duncan. “It’s no different than Snoop Dogg or Tupac,” he said. “It’s telling the story of street life.”
The evidence against Duncan apparently consists of his rap album and some pictures of him on a social media page. If convicted, he could face sentencing of 25 years to life for prison.
The law used to charge Duncan is a never-before used law that allows gang members to be prosecuted if they found to promote or somehow profit from the crimes of fellow gang members. California Penal Code Section 186.22(b)(1), says:
“Any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted…”
Duncan’s case is apparently the first time the law has ever been used to charge anyone.
The case raises significant issues involving free speech and the constitutional rights afforded to citizens providing protection for free expression, especially for creative works involving music and the arts. The First Amendment protects the rights of Americans to express opinion, even if they are unpopular, which means that the government cannot enact laws that curtail free expressions of opinion and art.
Although there is an exception for speech that incites violence or criminal conduct (meaning that the government can prohibit such speech), the speech has to be “imminent” (like yelling “shoot that cop” in a riot situation), Furthermore, the speech must actually be likely to result in violence in order to be considered unprotected.
In the 1960s, the Ku Klux Klan was prosecuted and convicted by Ohio law enforcement officials for advocating violence at a KKK rally. During the rally, which was filmed, KKK members armed with guns burn crosses and made speeches against getting “revengeance” [sic] on the demographic groups they opposed. In a landmark decision on the issue, the U.S. Supreme Court reversed the convictions, taking the position that the KKK did not engage in immediate or imminent expressions of intent to commit violence during their rally. It is uncertain how the San Diego District Attorney intends to argue that Duncan’s music album demonstrates a immediate intent to commit violence.
According to statistics online, African-Americans in the United States are arrested six times more often than their white counterparts. The U.S. is said to house 25% of the world’s population of prisoners, despite consisting of only 5% of the world’s population. The Corrections Corporation of America (CCA), the nation’s largest owner of private prisons, has seen revenues climb in excess of 500% in the past two decades as more states have privatized prisons. Public Interest, an anti-privatization group, recently found that contracts for 62 prisons across the country at the state and local level had “occupancy requirements” mandating local law enforcement professionals to keep jails 80 to 100 percent full.
For now, Duncan is still incarcerated in jail after bond was set at $1 million. The San Diego District Attorney declined to comment on the case.