Law in Popular Culture

Can being forced to listen to 'Baby Shark' be considered cruel and unusual punishment?

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Pinkfong’s version of “Baby Shark.”

A destructive and debilitating ice storm recently hit my home state of Oklahoma. Oklahoma City, where I live, took a great deal of damage. For those not in the know, an ice storm happens when snowflakes melt when falling through the atmosphere and freeze on contact with surfaces after passing through lower temperatures closer to the ground. The difficulty with this particular ice storm was that it hit early in the season. As such, a large majority of the trees that froze still had many of their leaves, leading to more ice, heavier tree limbs and more property damage.

The falling trees took out countless power lines and left hundreds of thousands of Oklahomans without power. My family was lucky enough to keep our power at home, but my business didn’t share the same fate. The storm left my entire 16-story office building without power for almost two weeks. Although we were able to get up to our sixth-floor office with the help of security, no electricity meant no lights—and perhaps more importantly, no heat.

With the office temperature much too low for even a moderately productive and comfortable working environment, we were forced to work from home. I’ve never had too much trouble working from my home office, but the older my son gets, the more difficult it is to accomplish anything work-related. I can’t help but want to play with him while I have the opportunity, and those times that I’m able to pry myself away simply lead to him trying to spend time with me in turn.

A focus on ‘Baby Shark’

After discussing the situation with my wife and brainstorming how and when I could accomplish any work while doing double duty as dad, we decided I would work while my son took his nap in the afternoon, and she would do her best to keep him busy during the remainder of the time so that I could find pockets of productivity here and there.

Like many other parents, one of the ways we can keep our son entertained is through videos and cartoons. We do our best to limit his screen time and keep the viewing material as educational as possible, but that can’t always be the case. Sometimes, children get hooked on something, and there’s no way to get it out of their system until it runs its course. With that in mind, meet “Baby Shark.”

“Baby Shark” originated from summer camps and other occasions of campfire fun. However, the version most parents (and a fair amount of people in general) are familiar with originates from a viral video produced by the South Korean educational company Pinkfong. The original video has more than 7.2 billion views as of the date of this column. Earth’s estimated human population is only 7.8 billion people. Let that sink in.

I’ve heard the tune and seen the video thousands of times since my son was born. Still, this last two-week stay at home introduced me to the plethora of “Baby Shark” versions (my least-hated one is the EDM iteration) and reinforced just how grating the song can be after continued exposure.

Oklahoma County Jail gets ‘creative’

Now, it’s not just parents who have landed on their last nerve due to “Baby Shark.” In 2018, the Guardian called it “the year’s most annoying song.” That sentiment hasn’t changed over the last few years. I can’t pinpoint exactly what makes the song so intolerable after repeated listens. All I know is I’m not alone. Other adults have realized “Baby Shark” can be weaponized, and they are using it to their advantage.

Those in power have tried to utilize music as a tool to control and torture individuals throughout history. Many will remember the FBI pumping Styx, Judas Priest, and Black Sabbath to try and get Manuel Noriega out of the papal nunciature in Panama City in 1989. A few years later in 1993, the FBI attempted a similar tactic at the Branch Davidian compound, this time relying on Tibetan chants, Christmas music, and Nancy Sinatra. The most recent occurrences seem to stem from U.S. military using the technique at CIA black sites in the early years after 9/11.

For whatever reason, some jail and prison administrators seem to have found utility in employing the same effort. Here in Oklahoma, we recently saw two former Oklahoma County detention officers and their supervisor charged in district court with misdemeanor counts of cruelty to a prisoner.

“How were they so cruel to the prisoners?” you might ask.

They forced inmates to listen to “Baby Shark” on repeat for extended periods of time.

The Oklahoma County District Attorney said it was unfortunate he “could not find a felony statute to fit this fact scenario.” While I agree inmates should be treated fairly and with respect, the criminal defense attorney in me automatically questioned the charges. Is playing “Baby Shark” really cruelty to a prisoner?

Notion of music and punishment

According to the controlling statutory language, the charge of “cruelty to a prisoner” is accomplished “if any officer or other person treat[s] any prisoner in a cruel or inhuman manner.” As such, the question becomes, “What is cruel?” Since the Eighth Amendment creates the prohibition in the legal context, the answer comes down to whether those Eighth Amendment rights are interpreted from an originalist or nonoriginalist perspective.

In 1958, the U.S. Supreme Court took up that task. The court decided in Trop v. Dulles that the notion of “cruel and unusual punishments” could evolve over time, and the best measure should be society’s “evolving standards of decency.”

Such an analysis seems to stem from a nonoriginalist approach. If the Supreme Court had employed an originalist approach (like that espoused by the late Justice Antonin Scalia and others), it would only find unconstitutional those punishments that were available and considered unacceptable at the end of the 18th century when the Eighth Amendment was ratified.

Again, that’s not how the court ruled, and it has stayed true to its “evolving standards of decency” principle to this day. Consequently, judges tasked with deciding the issue of “cruel and unusual” punishment are directed to look at the current state of our society and what we as a whole might consider cruel.

Regardless, there is no jury instruction included in the Oklahoma Uniform Jury Instructions for the charge of “cruelty to a prisoner.” The only definition for “cruel” is in reference to death penalty proceedings, in which the term is defined as “pitiless, designed to inflict a high degree of pain, or utter indifference to or enjoyment of the suffering of others.”

I haven’t found any Oklahoma caselaw discussing music as a form of cruel and unusual punishment. But in the case of the Oklahoma County charges, there may very well be other allegations in addition to merely forcing inmates to listen to a horrible song over and over again against their will. That would definitely change the analysis.

I—along with the majority of parents—might believe being forced to listen to “Baby Shark” on repeat for hours on end is close to torture, but it might not be “cruel.” The prosecution’s best bet may be convincing a jury that the defendants’ actions caused a level of suffering that allowed the jailers to receive some form of enjoyment. It will be interesting to see how the case plays out and whether the defendants intend to defend their actions as wrong, but not necessarily “cruel” under the law.

Adam Banner

Adam R. Banner is the founder and lead attorney at the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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