You Be the Judge

Should Someone’s Taste in Music Affect Their Sentence for a Crime?

Should the menacing music of a performer in legal trouble affect his sentence?

April-2017-YBTJ-music-crime-noma-bar-for-readers-digestNeftali Alvarez-Nunez was guilty, and he knew it. On March 21, 2015, while walking out of a bar in Cataño, Puerto Rico, the rapper spotted some cops and immediately threw the handgun he had hidden in his clothes to the ground. The police detained him and found the gun, a loaded Glock 9 mm fitted with an extended magazine and modified to fire as a fully automatic weapon. Alvarez-Nunez was also carrying ammunition and six Percocet pills. He pleaded guilty to two counts under U.S. law: possession of a machine gun and possession of that gun and ammo by an illegal drug user. He expected the district judge to sentence him to 24 to 30 months in jail, the standard pre­determined range for his crime according to U.S. law, and he was prepared to serve his time.

But Alvarez-Nunez was shocked by what the court singled out as having enhanced the severity of his crime—his music. His group, Pacho y Cirilo, performed reggaeton ­music—part rap, part Caribbean rhythms—and was a popular act in the inner city, including the housing project where Alvarez-Nunez lived. Pacho y Cirilo had put out multiple albums and numerous ­videos. In the presentence investi­gation report, the probation officer included a trans­lation of some of the band’s lyrics, such as “I am the kind that loves reggae and spraying them bullets” and “You don’t have to be a millionaire to blow all his brains.” According to the report, the lyrics “promote violence, drugs, and the use of weapons and violence” and should be a reason to significantly boost ­Alvarez-Nunez’s jail time. Do you like rap? Here is what your favorite music reveals about you.

At the sentencing hearing on September 3, 2015, Alvarez-Nunez’s attorney, Edwin Prado Galarzo, objected, arguing that an artist rapping about violence doesn’t mean he’s “encouraging people” to commit it. Plus, Alvarez-Nunez’s First Amendment rights were protected by the U.S. Constitution. The prosecutor then showed a music video by ­Pacho y Cirilo to the court. It included grenade launchers, weapons being fired, and people carrying assault rifles while children stood in a nearby crowd.

“A judge sitting in a case like this has … to consider the detrimental effects that this thing has in society,” said District Judge Jose Antonio Fuste. He then sentenced the performer to eight years, more than three times the high end of the standard sentencing range.

On September 14, 2015, Alvarez-Nunez filed an appeal.

Does it violate a musician’s constitutional rights to consider his violent lyrics and music videos when sentencing him for a crime he committed? You be the judge. Read up on these amazing health benefits of music.

The Verdict

Yes, it does. On July 8, 2016, the three-judge First Circuit Court of Appeals in Boston tossed out Alvarez-Nunez’s sentence because the district court “confused the message with the messenger.” The link between the lyrics and the crime, wrote the court, was drawn without any evidence that the music “reflected anything other than performances akin to an actor inhabiting a role.” The judges sent the case back for resentencing. Three months later, Alvarez-Nunez was given 36 months, which took into account the ammo he was carrying. Even in a criminal case like this, said Rafael Castro-Lang, his attorney for the appeal, “lyrics should not become criminal activity.”

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