Immigrants Deserve Equal Access to the Courts

August 2, 2011

Published in The National Law Journal.

This coming weekend, the American Bar Association will decide whether to issue standards for language access in the courts. If it adopts the standards, it will show the nation that the legal profession is serious about ensuring that the courts are accessible to everyone, regardless of race, ethnicity, language ability and income. If it rejects the standards, the consequences will be felt by vulnerable immigrant communities across the nation.

The ABA standards assert that courts must ensure that "persons needing to access the court are able to do so in a language they understand, and are able to be understood by the court." They recommend specific steps for courts to take to reach this goal, including providing interpreters in all court proceedings and in all critical encounters with people outside of the courtroom, and translating information and court forms into the languages frequently spoken by court users.

Lives hang in the balance. In California, a Spanish-speaking mother was unable to warn a court that her children were in danger from her abusive husband because there was no interpreter in the courtroom. In Wayne County, N.Y., a Spanish-speaking woman was arrested, and her husband went free, after she called the police to report domestic violence and the judge in the local justice court had her husband interpret. In Oregon, an innocent man spent four years in prison for a crime he did not commit, because the court assigned an interpreter who spoke the wrong language.

The situation is worsening. State courts are suffering unprecedented budget cuts. Judges explain in legislative testimony that the judicial function is constitutionally required and that constitutional rights are at stake. Too often, the arguments fall on deaf ears because the legislators are nonlawyers, are hostile to the courts or have campaign donors lobbying for the scarce tax dollars at play.

This is where the ABA comes in. The ABA's other standards serve as a benchmark, educating legislators about why judicial budget requests must be met. In their budget requests, judges point out that they need certain levels of court staff to satisfy ABA standards on judicial case-processing speed and on public-defender and probation-officer caseloads. The standards demonstrate that the entire legal profession stands behind the judges' claims that the funding they seek is essential to the proper functioning of the courts.

The lack of any standards for language access means that court interpreters will inevitably be among the first positions cut when the judiciary is forced to tighten its budget. Court administrators may object that judges need interpreters in order to be able to communicate with people who appear before them. Without a set of standards to point to, though, language access is destined to take a back seat to the other functions that the ABA has deemed essential.

The ABA can fix that by passing the standards this weekend. Then, it must use its large membership to push for adequate funding for court language access. State legislatures and Congress must be educated about the need, and about the constitutional and civil rights implications of failing to fund court interpretation. And the ABA must help develop innovative ways to provide language access cheaply.

Newly arrived immigrants with weak English-language skills are the very definition of a voiceless, vulnerable group. They need the ABA's help. Will the ABA listen?