Sunday afternoon shortly after 1:00 PM, the Amtrak train slowly staggers into Union Station after a long journey from the inner city of Chicago. I boarded the train back in Pennsylvania, and over the next six hours I witnessed the view outside my window transform from trees to buildings and from rivers to highways. As the train continues to careen toward its final destination, I glance up at one of the nearby buildings, covered with an image depicting the construction of the Lincoln Memorial. Minutes later the train comes to a stop, but thoughts of the image keep my mind wandering.
The mural covering the Penn Center building along the Metropolitan Branch Trail is called “28 Blocks,” a title declaring the significance of the twenty-eight marble blocks used by men who were primarily first and second-generation descendants of freed slaves to build the Lincoln Memorial between 1914 and 1922. The artist is Garin Baker, an award-winning New York City-based painter, who has also created numerous murals around Washington, D.C. for Ballou High School, Ledroit Park, and the American Road & Transportation Builders of America.
Baker’s murals are not the only form of street art showing up on buildings, bridges, signposts, and other corners of the nation’s capital. Mural art’s so-called “evil twin” graffiti defaced public property for decades prior to the new-age trend toward commissioned street art projects. In fact, just steps away from “28 Blocks,” walls lining the train tracks are polluted with multi-colored, haphazard lines, and block-letter abbreviations—a clear contrast to the mural above.
Graffiti is defined as “usually unauthorized writing or drawing on a public surface.” Historically, however, graffiti did not always have the negative reputation it carries today. The meaning of graffiti is derived from its ancient origin from the root word “graffio,” meaning “a scratch.” Traces of graffiti have been discovered in the remains of ancient civilizations, such as Greece and Rome, etched in caves, stones, and even footpaths. In the art world, graffiti is a technique to produce designs on a surface known as sgraffito, which involves creating a base surface, covering it with another layer, and then scratching the top layer to create a pattern or shape that exposes the color of the base layer. Specific groups of artists, particularly potters and painters, use sgraffito to produce texture in their artworks.
The styles and uses of graffiti shifted over time as new materials became available. The modern-day version of graffiti developed as a result of arguably two contributing factors. First, the advent of the spray paint can around 1950 provided a convenient means for graffitists to transfer paint to a surface quickly and without the burden of carrying extra supplies such as brushes, rollers, and paint. The accessibility and affordability of spray paint increased the production of graffiti. Second, the protest culture of the 1960s and 1970s amplified the use of graffiti as an instrument for political, social speech. Graffitists gained momentum through certain branding tactics, signatures, tags, and symbols. Eventually, signs associated with gangs began to appear as graffiti across cities, leading to rising reports of vandalism and crime rates.
As graffiti veered away from a traditional artistic technique and approached blatant vandalism, law enforcement began to step in. Some states restricted accessibility to purchase spray paint for certain age groups. Other jurisdictions criminalized graffiti altogether. In 2010, the District of Columbia enacted the “Anti-Graffiti Act,” which addresses the graffiti abatement process and costs for removing graffiti from a land owner’s property. The “Anti-Graffiti Act of 2010” also provides a legal definition for graffiti as follows:
“‘Graffiti’ means any inscription, writing, drawing, marking, or design that is painted, sprayed, etched, scratched, or otherwise placed on structures, buildings, dwellings, statues, monuments, fences, vehicles, or other similar objects that are on personal property located outdoors, or placed on trees, rocks, or other natural features, without the consent or authorization of the property owner, without regard to when that consent or authorization was given, and the graffiti is visible from a public right-of way.”
Portions of the abatement of graffiti provisions of the act have since been repealed within the District of Columbia Official Code, but the defacement of public or private property is still criminalized based on willful and wanton conduct including writing, drawing, painting, or otherwise marking any property, public or private, without consent of the property owner. Penalties for the defacement of property include a fine of at least $250, but will not exceed more than a $1,000 fine, up to 180 days in prison, or both. Possession of graffiti materials may also result in a penalty between $100 to $1,000. Graffiti materials, as defined by the D.C. Code, include: “any aerosol can, bottle, spray device or other mechanism designed to dispense paint or a similar substance under pressure, indelible marker, paint stick, adhesive label, and engraving device capable of leaving a visible mark on a natural or man-made surface.” In addition, the court may hold convicted graffitists liable for reasonable restitution costs to the injured property owner.
Recent regulations criminalizing graffiti are meant to deter vandalism and clean up streets from unauthorized markings. But is the law missing something by assuming that graffitists are criminals and vandals rather than suppressed, underpaid artists?
Mickael Broth’s memoir Gated Community: Graffiti and Incarceration illustrates an enlightening perspective on how his involvement in graffiti evolved into an adrenaline addiction and ultimately lead to his April, 2004 arrest by the Richmond City Police. At the time of his conviction, Broth was a student at the Virginia Commonwealth University’s art program. He describes the morning of his arrest as being pinned down and cuffed by a swath of law enforcement officers while still in his boxers, and then being interrogated by the Richmond Police Department’s Graffiti Task Force inside his studio apartment where evidence of empty spray paint cans, stencils, paint rollers, boxes of photos of graffiti, and sketchbooks full of lettering ideas and locations were scattered around the room in plain sight. While Broth had been practicing graffiti for years, his final stunt, which included painting his tag line “REFUSE” on a bridge over the I-295 highway, landed him in jail for ten months.
According to Broth, his run-in with the justice system was exploited by the state to make a statement about how graffitists would be treated under the law. Broth’s arrest appeared in local news stories, which characterized him as a prolific vandal of an atrocious crime. The media coverage and legal punishment of Mickael Broth were meant to send a message to graffitists that the state’s no tolerance policy toward graffiti would be strictly enforced. Still, graffitists send their own message to the state that their art is not going anywhere as new graffiti is continuously plastered around cities across America.
Taking a step back, it is critical to ask whether strict enforcement, imprisonment, and penalties are the best ways to combat illegal graffiti making. Could understanding the motivation and intent of a graffitist provide greater insight on how to prevent graffiti altogether? Is there something going on deeper within a graffitist than what is visible in the paint that meets the surface? Broth observes “[a]rtistic expression, fame, contempt for society’s laws, political motivations; there are all kinds of real reasons that people write graffiti, and for most people it’s some jumbled-up mix of motivations. In my opinion, at its core, graffiti provides some feeling of self-satisfaction and self-worth.”
Interestingly, Mickael Broth is now a well-known artist, award-winning sculptor, and commissioned muralist. “He is the recipient of the prestigious Virginia Museum of Fine Arts Professional Fellowship, and his work is held in numerous public and private collections around the country. As a mural painter, he has created work for clients from Garmin International to Altria and Mellow Mushroom. He has co-curated the RVA Street Art Festival since its inception and is the founder of the Welcoming Walls Mural Project in Richmond, Virginia.” His work is still plastered on the sides of buildings, but now it is done legally. In some instances, the state has even paid Broth to paint or erect his art on public property.
Could a viable solution to ending illicit graffiti and cleaning up the streets be less about throwing graffitists in jail or imposing fines on already “starving artists” thus further suppressing their creativity, and more about providing resources, funds, and outlets for artists to express themselves and to create works of art? Is there a redemptive remedy in the causal connection between graffitist turned muralist? Would Broth have become a successful artist but for his early experience as a graffitist? Certainly, his transformation from a rebellious young graffitist, sentenced to jail to an acclaimed, community-driven artist creates the perfect story line of restorative justice—the classic example of unruly criminal to upstanding citizen.
Either way, it is without question that mural art has held a significant place in our social-media obsessed society. Consider the flocks of tourists that wait to pose in front of Kelsey Montague’s “WhatLiftsYou” wings mural in Nashville in order to get an “Insta-worthy” picture to share with their friends. Murals are becoming the portals between the real, tangible art world and the intangible screens we live behind where people can interact simultaneously with art and with one another. Yet, mural art may serve an even greater purpose by reclaiming the artistic process of graffiti as it is traditionally understood in art history and restoring the morality of graffitists within the context of the law.
* Gina McKlveen, J.D., expected May 2021, The George Washington University Law School. To the conductors of Amtrak Railway, my sincerest appreciation for working daily to secure the safety of travelers across the country and showing passengers a view of the world outside their windows. Thank you to artists like Garin Baker, Mickael Broth and Kelsey Montague, whose artwork creates vision for individuals and communities. But, most importantly, thank you to the many, many artists–past, present and future–whose work and voice inspires me to make and use my own.
 See Perry Stein, Massive New Mural in D.C. Pays Tribute to the Men Who Built the Lincoln Memorial Statute, Wash. Post (Sept. 1, 2017), https://www.washingtonpost.com/local/massive-new-mural-in-dc-pays-tribute-to-the-men-who-built-the-lincoln-memorial/2017/09/01/00425e76-8e5d-11e7-84c0-02cc069f2c37_story.html.
 See Garin Baker, Public Art Murals, Garin Baker Fine Art, https://garinbaker.com/viewcollection/117449 (last visited Dec. 1, 2019).
 Graffiti, Merriam-Webster’s Dictionary and Thesaurus (12th ed. 2019).
 Goran Blazeski, The History of Graffiti from Ancient Times to Modern Days, Vintage News (Nov. 17, 2016), https://www.thevintagenews.com/2016/11/17/the-history-of-graffiti-from-ancient-times-to-modern-days/.
 See id.
 See The Editors of Encyclopedia Britannica, Sgraffito, Encyclopedia Britannica (2019), https://www.britannica.com/art/sgraffito.
 See Hilary Greenbaum & Dana Rubinstein, The Origin of Spray Paint, N.Y. Times (Nov. 4, 2011), https://www.nytimes.com/2011/11/06/magazine/who-made-spray-paint.html.
 See Blazeski, supra note 4.
 See id.
 See Marc Ferris, Graffiti as Art. As a Gang Tag. As a Mess., N.Y. Times (Sept. 8, 2002), https://www.nytimes.com/2002/09/08/nyregion/graffiti-as-art-as-a-gang-tag-as-a-mess.html.
 See Tex. Penal Code § 28.08 (2015); R.I. Gen. Laws §§ 11-9-19 & 11-9-19.1 (1981).
 See N.J. Rev. Stat. § 2C:33-24 (2014); N.Y. Admin. Code § 10-117.1 (1991).
 See Anti-Graffiti Act of 2010, 2009 D.C. B. 69 §§ 4-7 (2010).
 Id. at § 2(4).
 D.C. Code § 22-3312.01 (2019).
 D.C. Code § 22-3312.04(a)-(b) (2019); D.C. Code § 22-3571.01(b)(4).
 D.C. Code § 22-3312.04(e) (2019).
 D.C. Code § 22-3312.05(5) (2019).
 See D.C. Code § 22-3312.04(f) (2019).
 See Mickael Broth, Gated Community: Graffiti and Incarceration 17 (Smashwords ed. 2013).
 Id. at 23.
 See id. at 53.
 See id. at 48, 252.
 See id. at 17, 82.
 See id. at 151.
 Id. at 22.
 Id. at 276-77.
 See Kelsey Montague, The What Lifts You Campaign, Kelsey Montague Art (May 26, 2015), https://kelseymontagueart.com/whatliftsyou/ (last visited Dec. 1, 2019).
The image depicting Lincoln is credited to Garin Baker, Public Art Murals, https://www.garinbaker.com/workszoom/2919544#/.