The Right to Know Your Rights: Language Access in the Justice System

If no bridge spans the language gap, people are bound to fall through.

When a miscommunication between her Spanish-speaking aunt and a nurse led to improper care and physical harm, Nicole Goldin says, she wondered why there wasn't someone on staff twenty-four hours a day to make sure the patient could express what was wrong, to make sure the hospital staff could explain the treatments they administered. Her despair at seeing someone she loved suffer because of the language gap made Goldin determined to become the bridge herself.

Hospitals aren't the only places where a few words can change a person's life. Goldin has now been a registered Spanish language court interpreter with the Louisiana Supreme Court for two years, freelancing her services to New Orleans area courts when she isn't working as a counselor. She receives more requests than she can respond to herself, the emails pouring in from courts that lack staff interpreters and attorneys whose clients require language services beyond the courtroom.

Over 25 million people in the United States have a limited proficiency in English, and the language barrier stands especially tall where the administration of justice is concerned. Without Goldin and court interpreters like her, limited English proficient (LEP) individuals would have no means of understanding courtroom proceedings, much less of stating their cases. Legalese is a dialect unto itself, so even people who use English informally in their homes or jobs often get bogged down with the unfamiliar terminology they are asked to wade through in the legal system.

Under U.S. law, LEP people are protected from this briar patch of misunderstandings. Title VI of the Civil Rights Act prohibits discrimination based on national origin, from which one's mother tongue springs, in any program or agency that receives federal funding. Further executive orders and laws in some states have since elucidated LEP people's right to understand and thus be conscious participants in the legal process. LEP people's rights include the entitlement to official documents such as court summonses that have been translated into a language in which they are proficient and the provision of interpreting services for all spoken communication in the courtroom.

In reality, the basic services to which LEP people are entitled fail to reach them with startling regularity. Forty-six percent of respondents to a 2009 Southern Poverty Law Center survey of the U.S. South said they had not been provided with interpreters at any point during their encounters with the justice system. Although states like California and Texas, where the LEP populations are largest, might seem like the likeliest candidates for interpreter shortages, states with less drastic needs tend to be in direr straits, having less experience handling the communication problems that arise. Nestled in the sweltering Southern U.S., Louisiana is a prime example of a state wrestling with a need their services can't yet fully meet.

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New Orleans is city sunk into the earth. Convexed below sea level, it forms a roiling bowl. The city is one of the U.S.'s great historic melting pots, a center for French and Spanish and Caribbean and quintessentially American culture. The differences among and confluences of languages have been shaping the community for centuries. Still, the state remains unprepared to provide for the thousands of non-English-speaking people who have been pouring in over the last decade.

A sizeable immigrant community has long called Louisiana home, but their numbers have increased steadily since Hurricane Katrina in 2005. In the wake of the devastation of that natural disaster, migrant workers took on the enormous task of reconstructing New Orleans's leveled neighborhoods and broken levies. Having built the city, many made it their permanent home.

More recently still, violence in Central America has led to an influx of unaccompanied minors, many of whom seek asylum status in New Orleans where they are staying with relatives in the city's large Honduran community. According to Syracuse University's Transactional Records Access Clearing House, Louisiana's two immigration courts saw 1,759 juvenile cases last year, more than triple the number they faced in 2013. This sharp increase has strained court staff and funds, and these represent only a fraction of the many cases across Louisiana's courts that require interpreting services.

"We generally have a huge problem with interpreter shortages in the state," says Daesy Behrhorst, co-chair of the Louisiana Language Access Coalition, which works for LEP people's access to translators and interpreters in all aspects of public life. Faced with this deficit of qualified people and a greater deficit of funds, she says, some courts keep costs down by contracting untrained interpreters or pulling the nearest person who speaks a little of both languages into the courtroom.

Untrained interpreters, however, raise issues of both practicality and principle. The first potential problem that comes to mind is an insufficient knowledge of one or both languages, but according to Behrhorst, "you can have a very high quality interpreter and still have huge ethical problems." These problems, she explains, include interpreters with no legal background dishing out legal counsel and inserting their own opinions into what is supposed to be as close to a verbatim interpretation as possible.

Although Louisiana has a two-tiered program to qualify court interpreters—an intensive two-day course and written test to become a registered interpreter, an additional three-part oral exam to become a certified interpreter—no state laws exclude unqualified interpreters from being employed by or otherwise used in courts.

This loophole leaves room not only for the use of underqualified interpreters, but also for the absence of interpreters altogether. When the courts are unable to provide language services, trials are supposed to be postponed, but in the interest of resolving issues more quickly, some LEP people bring in friends or family members to fill the role. The Southern Poverty Law Center's report cites cases in which children have been asked to interpret for their parents, and one domestic violence trial in which the girlfriend of the defendant interpreted for the victim.

"Even a nail beautician has to have a certification, and the worst that can happen there is they mess up your cuticles," Behrhorst continues, her hands suspended in exasperation. "To me, whether you're going to end up in jail for a long time because you can't understand what's going on, that seems like a bigger deal."

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Language access in courts nationwide has been receiving increasing attention in recent years thanks in part to the heightened profile of immigration issues. The LEP population grew by 80% between 1990 and 2010, a trend that shows no sign of reversing any time soon. Facilitated by a grant from the State Justice Institute, The National Center for State Courts (NCSC) held a Summit on Language Access in the Courts in 2012, gathering court representatives from 49 states and three territories to discuss ways to develop or improve their services for LEP people.

The national spotlight has had an impact at the local level. In 2012, Louisiana partnered with the NCSC, created a position for a Language Access Coordinator in the state's Supreme Court, and adopted their first code of ethics for interpreters. Louisiana's language access progress so far has mostly been in the area of training, improving the program in place for registration, and offering the oral exams required for certification locally for the first time in 2015.

"It's getting better, but there's a long way to go," says Esther Navarro-Hall, her voice bright with hope. She is the chair for the board of directors of the National Association of Judiciary Interpreters and Translators, a nonprofit professional organization that pushes for quality language services and advocates for the people who make that possible.

Navarro-Hall cites the shortage of resources as the primary obstacle to the development and maintenance of quality language access programs in U.S. courts. The data would seem to back her up. It's no surprise that courts feel underfunding is an impediment to providing better services. According to the report that came out of the NCSC's 2012 summit, fully half of respondents' localities did not provide their local courts with any funding for language access programs, and only 36% of respondents' courts had ever received grant funding to supplement what the budget allotted.

Personnel shortages strain the courts as well. Eighty-six percent of respondents' courts reported having used employees other than interpreters to provide language services during court proceedings. This statistic suggests a shortage that becomes more troubling still where less common languages are concerned. In the entire state of Louisiana, for example, only one person is currently listed as a registered interpreter for the Vietnamese language and only one for Mandarin. No other Asian languages are represented at all, despite the latest census data showing an Asian population of well over 69,000. Courts can use remote technology—rarely anything higher tech than a phone call on speakerphone—when no interpreters are available locally. However, doing so requires more time and effort in seeking out someone who speaks the language, and with the delays that can cause, trials sometimes end up taking place without any interpreter at all.

Navarro-Hall is sympathetic to the courts' predicament, but does not waver on her stance. "It's a matter of priorities," she asserts. "If we're going to be who we say we are as a country, language access cannot be an afterthought."

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Awareness is an important part of the battle and every ounce of federal attention counts, but the fight can't stop at rhetoric and national conventions. Despite Louisiana's acknowledgement of the necessity of facing its language access problems and the new training measures they have set in motion, advocates say that the state's courts still use underqualified interpreters and, upon occasion, some resign themselves to the absence of interpreters altogether.

"Sometimes [the courts] push the case through with no interpreter to get it over with," she says. In such instances, the police present evidence and the judge hands down a verdict. They do their best to help the LEP person involved to understand their charges and their case's outcome using gestures, tones of voice, and other context clues.

"It's not like they don't know they have to have language access programs," Behrhorst says, "it's just that nothing's going to happen to them if they don't."

However many laws are laid down at the federal level, states without the resources to put them into action will continue to skate by under the radar as long as no enforcement mechanisms are in place. LEP individuals have recourse through the Department of Justice to report a court's failure to provide a qualified interpreter, but language access advocates, attorneys, and interpreters say most people have no idea that they are entitled to the service in the first place. Many LEP people need an interpreter to tell them what their rights are before they can demand them.

Still, activists are encouraged to see Louisiana moving in the right direction. Christy Kane, executive director of the non-profit Louisiana Appleseed and a class action litigator in New Orleans, has worked closely with the state's Supreme Court over the last few years to help focus attention on the language access issue and develop resources for LEP people.

"Are there still barriers? Yes," Kane says, "but I'm happy with the way the court is handling it…It's taking a while, but at least they're doing something. It's progress. As an attorney, I understand how slow these processes can be."

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Interpreters are witness and party to the language access problems and successes in the courts. "There's so much more to interpreting than being bilingual," Goldin says. She believes her job is to be a conduit for ideas from one language into another. "An interpreter should be a ghost," she says. "I try to fly under the radar as much as possible."

Nonetheless, Goldin feels that part of her role as a conduit for ideas is to convey words' context as well as their most literal translations. "The guy I'm translating for might say 'bitch' in a sweet way in Spanish that sounds nasty in English," she explains. "Sometimes I have to take off my interpreter hat and say, 'Your Honor, this is what he means when he uses this word.'"

In addition to confidence, listening skills, and an unshakable facility in both languages, Goldin believes in the necessity of understanding three cultures: that of the person she is interpreting for, that of the lawyers, judges, and court personnel, and that of legal world itself.

Navarro-Hall, who has many years of experience in the courtroom herself, agrees. "We are the only ones in the room who understand both cultures most of the time," she says. "We are the LEP's voice, but one of the misconceptions is that we're just interpreting for LEPs. We're also there for the judges and attorneys…We're a part of the team."

Interpreting can be grueling work, requiring constant patience and exacting focus for hours on end. That doesn't tend to faze the people who choose to take on the job, though. Navarro-Hall sees interpreting as some of the most rewarding work a person can do. "You hear children say, 'I want to grow up to be a firefighter' or 'I want to grow up to be a teacher,'" she muses, "but they never say 'I want to be an interpreter.' One of my dreams is that one day they will."

Navarro-Hall believes that justice administered in a language the litigant doesn't speak isn't justice at all. "Interpreters make the world go round," she says. "Without them, how can we communicate with one another?"