It seems inconceivable that a young man in America could be executed based on songs he wrote, yet barring intervention from Texas Governor Greg Abbott. That is precisely what will happen on April 30.
The case involves James Broadnax, a 37-year-old Black man, who traveled with his cousin with the intention of robbing someone near Dallas in 2008. What followed was horrifying. Matthew Butler, 28, and Stephen Swan, 26, were shot and killed outside a recording studio. Broadnax and his cousin, Demarius Cummings, were arrested. Both were 19 years old at the time.
At trial, the district attorney pegged Broadnax as the trigger man and sought the death penalty. Before the trial began, prosecutors made Broadnax’s race a central part of their case by systematically excluding Black jurors. Had they been successful, the jury would have been all white. However, even the judge saw a likely appeal on the unconstitutional exclusion of jurors based solely on their race, and reinstated a single Black juror.
Nobody denies that Broadnax was involved in the robbery and was present during the shootings. Based on that, along with prosecutors’ claim that he was the one who pulled the trigger, Broadnax was found guilty of murder.
But a case already tainted with racial bias at jury selection became even more so during sentencing. Following their guilty verdict, the jurors were charged with determining Broadnax’s fate: life in prison without parole or the death penalty.
Under Texas law, securing the death penalty requires prosecutors to convince the jury that, among other things, Broadnax presented a threat of “future dangerousness.” This presented a problem. Broadnax was 19 at the time of the crime. He suffered an abusive upbringing, and he had no criminal history other than a minor marijuana charge.
Lacking evidence to meet the “future dangerousness” mandate, prosecutors resorted to introducing 40 pages of his “gangsta” rap lyrics from notebooks found after his arrest. Many of the lyrics contained themes of redemption and love, but the State carefully curated the lyrics presented to the jury, selecting only those containing violence, drugs, or other illicit behavior. Notably, none of these lyrics were presented at trial, highlighting the lack of relevance to the charges against him. This was about making him out to be, to quote the prosecutor, a “psychopathic killer.”
After the jury was told that Broadnax was “the worst kind of predator,” similar to those “we like to watch on Animal Planet,” the nearly all-white jury was sent to deliberate. The State’s efforts to use Broadnax’s artistic works to meet the “future dangerousness” threshold paid off. During a day-long deliberation, the jurors asked to see the lyrics again. Then they kept deliberating. Then they asked to see the lyrics yet again, and shortly thereafter returned with a death sentence.
Last month, we joined with a number of artists—including Young Thug, TI, Fat Joe, and Travis Scott—in filing amicus briefs asking the Supreme Court to stay Broadnax’s execution. But in doing so, we were also drawing attention to the reality that cases like Broadnax’s are disturbingly common.
Across the country, police and prosecutors have increasingly relied on rap lyrics at every stage of the criminal justice process—to open investigations, to charge suspects, to secure indictments, to win convictions, and to argue for severe sentences, including the death penalty. No other fictional form, musical or otherwise, is targeted like this in the criminal justice system. Unsurprisingly, the defendants in these cases are overwhelmingly young Black and Latino men.
Our research has uncovered more than 800 cases, dating back to the late 1980s, in which rap lyrics were used against defendants, including in more than 30 death penalty cases. To see how often other genres were treated this way in the courts, Jaeah Lee, writing for the New York Times, went back to 1950 and found just four – notably, all four were eventually tossed out or overturned.
Despite political polarization in America, conservatives alarmed by the obvious First Amendment violations and progressives animated by racial inequity, have found common cause. California and Louisiana have already instituted laws establishing rules for the admission of creative expression, and Maryland just passed a bipartisan-sponsored bill with the clearest guidelines yet, now awaiting Governor Wes Moore’s signature.
These laws do not ban the use of creative expression as evidence outright. They are simply intended to ensure that prosecutors focus on meaningful, relevant evidence when seeking convictions.
Adding another reason to take pause, Broadnax’s cousin, who is serving a life sentence for his role in the crime, came forward last month with a sworn affidavit admitting he was the shooter. His confession is corroborated by physical evidence present at trial but never adequately explained: DNA from only Cummings, not Broadnax, was found on the grip of the murder weapon and one of the victims.
We are now one day away from the execution of a man who is not fighting his conviction, but begging for his life. Mr. Broadnax has been a model prisoner since his conviction, underlining the inaccuracy of the “future dangerousness” finding. After sober consideration of the facts, we ask Governor Abbott to show mercy and stand for the First Amendment.
When the prosecutors in Mr. Broadnax’s case feared their case of execution was weak, they weaponized his art and stripped away his humanity. Their failure doesn’t mean we have to lose sight of our own.
Editor’s Note: The Supreme Court has denied all appeals filed about the rap lyrics, jury selection, and a newly surfaced confession.