The 88-page indictment charging the rappers Young Thug and Gunna along with 26 others with racketeering made headlines last month, but it was hardly surprising to legal experts familiar with these increasingly common prosecutions.

The indictment alleges Young Thug, whose given name is Jeffery Williams, founded an Atlanta street gang called YSL, short for "young slime life," and affiliated with the national Bloods gang network. The indictment says YSL used murder, assault and threats to make money "through a pattern of racketeering activity." Of the 56 charges at play in the court filing, Williams is accused of two: Conspiracy to violate Georgia's Racketeer Influenced and Corrupt Organizations Act and participation in a criminal street gang.

But the indictment includes a laundry list of allegations to back up the conspiracy charge. Some of those may be serious; Williams is accused of receiving a stolen gun and of renting a car that was driven by other defendants when they allegedly killed a rival gang member. But most don't rise to the level of a crime. The indictment itemizes song lyrics and Instagram posts that reference YSL, which is also the name of the record label Williams founded in 2016. It mentions Williams threatening a mall cop in 2015, and a time in 2018 when his car and another vehicle were pulled over for speeding, and the other vehicle contained an AK-47.

The 182 acts supporting the conspiracy charge span 50 pages and date back to 2013. They appear as a list, with little explanation of how they're related.

That's not unusual, and it's by design, said Fareed Hayat, a City University of New York dean and law professor who said prosecutors frequently throw every allegation they can at a RICO-related charge.

"That is what they do," he said. "They don't know the details, and the truth of the matter is, they will never have to prove them. You put in all of these allegations so you can overwhelm. This is a design of the statute to incorporate all of these largely unrelated events, and events that [accused] individuals don't even have to know about."

Prosecutors, including Fulton County District Attorney Fani Willis, consider RICO vital for prosecuting retaliatory violence.

"It allows juries and the communities to see the complete picture of a crime, so they can truly be educated and have facts to weigh when they're making a decision," Willis said at a press conference on the YSL indictment. "Should you expect to see other RICO indictments against other criminal street gang organizations? Absolutely."

Prosecutions under RICO, passed in 1970 so the government could pin Mafia bosses with the crimes of their underlings, have branched out to apply to a panoply of crimes. The act has been used to go after a bribery and kickback scheme involving the Texas health care provider Access Healthsource, to indict FIFA soccer officials and, just last year, to charge the singer R. Kelly of sexual assault.

The statute has been stretched beyond its original purpose to target low-income communities of color and "undermine the entire notion of what our criminal justice system should be," according to Babe Howell, a CUNY law professor who has researched prosecutions in New York.

"It's an incredibly powerful tool that was intended to be used against highly sophisticated defendants like the Mafia and white collar criminals. It was meant to even the playing field," she said. "Instead, RICO is being used more and more and disproportionately against groups of poor Black and brown kids, who are the most disadvantaged defendants you can find."

And prosecutors often use songs to do this. Violent lyrics are found in every genre of popular music, from Johnny Cash's "Folsom Prison Blues" to Queen's "Bohemian Rhapsody." But rap has been singled out for criminal prosecution, according to Erik Nielson, a University of Richmond professor who wrote the book "Rap on Trial" with University of Georgia law professor Andrea Dennis.

"It's obviously targeting young Black or Hispanic men. That's how RICO, especially when rap lyrics are involved, has been used," Nielson said. "What's unique about this [Young Thug] case is his profile. Generally speaking, cases involving rap lyrics as evidence target amateurs, up-and-coming artists, people who do not have name recognition, who do not have financial resources."

A Relatively Young Statute

Organized crime was on the rise in the United States in the middle of the 20th century. By 1967, 24 mafia organizations were operating cartels in cities across the nation, according to a report commissioned by President Lyndon Johnson.

Among the many suggestions in the report, "Law Enforcement and the Administration of Justice," was new legislation creating harsher sentences in cases where "a felony was committed as part of a continuing illegal business in which the convicted offender occupied a supervisory or other management position."

Two years later, Sen. John McClellan, D-Ark., introduced a bill that would eventually become the RICO Act. Signed into law by President Richard Nixon in 1970, it could be used to sue or charge any person with a stake in an enterprise that engages in criminal activity.

To establish the existence of an enterprise, a RICO complaint must allege a pattern of racketeering activities — the commission of at least two serious crimes within 10 years. Only certain crimes count as these "predicate acts," but the list in the federal statute is long, including murder, kidnapping, robbery, extortion and drug dealing as well as bribery, fraud and money laundering.

While the statute is detailed and complex, over the decades, the U.S. Supreme Court has stepped in several times to clarify its parameters.

In 1981 in U.S. v. Turkette, the high court found that an "enterprise" need not be a legitimate business infiltrated by racketeers but could also be an illegal organization like a drug ring. Eight years later in H.J. v. Northwestern Bell Telephone, the justices clarified that "a pattern of racketeering activity" must show that predicate acts are related and demonstrate "continuity" in aiding ongoing criminal activity.

With Salinas v. U.S., the court found in 1997 that convicting someone with conspiracy to violate RICO does not require proving that they themselves committed two predicate acts. Instead, conspiracy — the charge against the YSL defendants — only requires proof of agreement to prop up the enterprise, even if the conspiracy defendants never commit a crime.

The court has had to step in so often because with only a few decades of case law, RICO is still a fairly young statute, according to Jeffrey Grell, a Minnesota attorney who wrote a textbook about the federal RICO Act.

"What I can say as somebody who's been practicing in this area for 32 years is that people are getting comfortable with RICO," he said. "And when I say people, I mean, lawyers. I mean clients, especially big companies. And most importantly, I mean judges. That's because the Supreme Court has done a lot to clarify the statute."

When it passed, RICO was touted as a tool for prosecuting organized crime, but about a decade later, plaintiffs began to take note of its civil remedies. That led to a boom in litigation brought by plaintiffs attorneys, especially against corporations in the 1980s and '90s.

But RICO also saw a resurgence among prosecutors, according to Howell. In the early '90s it was used to go after gangs. In 1996, the city of Boston deployed "Operation Ceasefire," a program by which gang members attended court-ordered meetings where they were offered help leaving their gangs and warned that after the next gang-related killing, prosecutors would initiate a widespread crackdown of the whole group using RICO. The program, later referred to as "the Boston Miracle," was followed by a significant drop in violence in that city, as well as a rise in prosecutions nationwide as the model spread across the country.

And that gang prosecution disproportionately affected people of color, according to a 2012 study published in the Michigan Journal of Race and Law, which found that only about 13% of criminal gangs prosecuted under RICO between 2001 and 2010 were majority white. That suggests a significant underrepresentation of white defendants in gang prosecutions, since a 1998 survey of young people in 11 U.S. cities concluded that about 40% of gang members were white.

That could reflect both the communities that tend to be policed heavily and the evidence prosecutors seek out. Amateur rap lyrics are often used as evidence in RICO and similarly styled state racketeering and criminal gang conspiracy charges, Nielson said.

"We've seen the use of rap lyrics as evidence increase significantly over the last decade and a half or so. That tracks pretty closely with the rise of social media. Now all of these aspiring artists have the ability to disseminate their music or their videos in ways that they could not have beforehand," Nielson said. "Around that same time, you saw the rise of these gang units in police departments. And sometimes they were formed in response to actual issues. Many times they weren't."

Rights At Risk

When it was still making its way through Congress, the legislation that would become RICO was understood to largely target organized crime, particularly the mafia's infiltration of legitimate businesses.

But from the beginning, the American Civil Liberties Union warned about "the enormous and virtually unlimited breadth" of the bill, telling a Senate subcommittee in 1969 that sections of the law "would be applicable in areas far removed from that which we traditionally define as 'organized crime." Lawrence Speiser, then director of the ACLU's Washington office, imagined racketeering charges could be brought against protest movements or a local grocer who didn't refuse service to mobsters. Speiser worried constitutional rights would be sacrificed in the interest of efficient prosecution.

"Bills aimed at one danger have an unfortunate habit of being utilized against others," he told the committee. "There is no guarantee, when bills are broadly written or are vague in their definitions or are all-encompassing, that although they are aimed at organized crime, they may not be utilized against those accused of being engaged in other than organized criminal activities."

Decades later, scholars studying RICO's modern application echo those concerns.

RICO was seen as a way to indict the heads of well-organized mob families, but street gangs and crews are far too diffuse and disorganized to be considered "organized crime" in the traditional sense, according to Howell.

"There's no boss. There's no hierarchy, and there's no one giving orders," she said. "There's also no one gatekeeping, so if young kids growing up in the neighborhood say 'I'm YSL,' the older folks who may have been YSL are not saying, 'You can't be YSL.'"

Hayat also echoed the ACLU's concerns about the sacrifice of constitutional rights, including the Fifth Amendment's double jeopardy clause, which prohibits charging someone twice for the same crime.

"The design of the statute is to incorporate instances that may or may not be provable. But sometimes they use incidents that have already been proven, that people have already been prosecuted for," Hayat said. "That's a violation of our normal doctrine of one punishment, one crime."

He also worried about the ways broad RICO prosecutions may violate due process rights, especially when defendants stand trial for the crime of their associates.

"In a fundamentally fair trial, you get to challenge the evidence before you, not based on hearsay, not based on character evidence, not based on the acts of other people," he said.

Howell said RICO also provides a workaround for normal federal criminal procedure rules, noting a slew of evidence that wouldn't otherwise be admissible becomes fair game if it might be part of a pattern of racketeering activity.

"In your normal criminal case, if you charge me with murder, you'd have to prove that I was there, that I shot the person or had the opportunity," she said. "You would not be able to bring in evidence that I killed someone else. That would be a prior bad act propensity. You wouldn't be able to bring in evidence that my friends are terrible people that do a lot of crimes, or that they sing songs that are kind of violent or vulgar. But the minute you bring this criminal enterprise charge, it's fair play."

The use of lyrics and social media posts raise concerns about First Amendment rights, as well.

When asked about it at a press conference last month, Willis told reporters that "the First Amendment does not protect people from prosecutors using it as evidence if it is such."

But Hayat said there can be "selective prosecution with this kind of behavior." He likened the use of rap lyrics in RICO cases to the Black Codes that targeted formerly enslaved people for loitering — "they made it a crime to do what they knew you were going to do."

"There are certain things that are not a crime until you actually commit a crime, but we are in a space now where we literally have a predicate act — which is a crime, but one you don't have to prove — and if you put up a post, and we can prove that. And now as a result, you've committed a crime and furtherance of whatever gang it is."

Yavar Bathaee, a partner at Bathaee Dunne LLP with extensive RICO experience, said that when lyrics and social media posts are mentioned in the YSL case, the indictment never cites a statute that they're violating, it simply quotes the lyrics and then calls them "an overt act in furtherance of the conspiracy."

"It's weird to say that making a statement, or even telling a story — when you don't know if it's true or not — is criminal conduct. And you can easily see how that would chill First Amendment speech pretty aggressively," he said. "Some rap is fanciful. They're selling an image and a character. It's really bizarre to chill speech like this by saying that you've committed a felonious act by posting lyrics, or an image of yourself with a gang sign."

That is likely a deliberate strategy on the part of prosecutors, he said. Colors, gang signs and gang references serve more as evidence of affiliation than evidence of a criminal act, and prosecutors may be introducing it early as criminal conduct for evidentiary reasons.

The Fulton County District Attorney's Office and Williams' attorney could not be reached for comment on this article.

What May Lie Ahead

There are a few defenses that Williams and some of his fellow defendants could mount. One would be that just because they know possible gang members does not mean they're furthering the gang's criminal activities.

"If I was representing Jeffrey Williams, that would be a huge part of my defense, that he's basically being charged with guilt by association," Grell said. "Some of these people are his friends, I gather. His defense would be, 'Look, I know these people, that doesn't mean I'm involved in their activities."

The government has to prove criminal intent, Grell added, because "you can't negligently violate RICO."

Another possible defense would be that Williams' song lyrics are artistic expression, merely commenting on what's happened in his neighborhood.

"If I was him, I would argue, 'I am no different than a Martin Scorsese or a Francis Ford Coppola or anybody else who's created art based on criminal activity. The only difference is that I'm a Black guy who grew up in a Black neighborhood, and a lot of people I grew up with are alleged to be gang members, at least according to the prosecutor,'" Grell said.

But activists hope the YSL case could spur reforms in courtrooms elsewhere, as lawmakers mull forbidding such evidence. A bill approved by the New York State Senate would prevent prosecutors from using "evidence of a defendant's creative or artistic expression" at trial, unless they can prove the meaning of the art is literal and show a strong connection between the creative work and the crime alleged.

Nielson, who worked with lawmakers on the legislation, said he's aware of efforts in California and at the federal level to draft something similar, but nothing has been proposed yet. Nielson said he's also talked to the Recording Academy, which produces the Grammy Awards, in the past about the possibility of federal legislation.

More recently, Kevin Liles, CEO of 300 Entertainment, the record label that distributes YSL Records, started a Change.org petition calling for signatories to "support Black art" and show their support for not only the New York bill but also similar legislation across the country.

"Today in courtrooms across America, Black creativity and artistry is being criminalized. With increasing and troubling frequency, prosecutors are attempting to use rap lyrics as confessions," Liles' petition says. "This practice isn't just a violation of First Amendment protections for speech and creative expression. It punishes already marginalized communities and silences their stories of family, struggle, survival and triumph."

In less than two weeks, the petition has garnered more than 45,000 signatures.

That makes Nielson hopeful that the YSL case could inspire real legal reforms.

"It seems like an effort that is rightfully trying to take advantage of this high profile case," he said.

--Editing by Brian Baresch.

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