While the national immigration debate becomes more vicious by the day, the Department of Justice has taken steps to further understanding between immigrants and the larger society. In mid-August, Assistant Attorney General Thomas Perez, head of DOJ’s Civil Rights Division, wrote to the chief justices of the nation’s 50 state court systems, reminding them of their obligation to ensure that the courts are accessible to people with limited proficiency in English (often known as “LEP” individuals). In particular, the letter stressed that the courts must provide interpreters to people who need them, at no cost, in all types of court proceedings.
This letter holds out the promise of a court system that is open to everyone in this country. As the inscription over the entrance to the U.S. Supreme Court proclaims, “Equal Justice Under Law” is a cornerstone of our legal system, and of our democracy itself.
When court interpreters are not available, bad things happen to good people. Victims of domestic violence are unable to explain why they are scared, and so cannot get a restraining order. Parents cannot explain what they are doing to keep their children safe, and so their children are sent to foster care. Criminal defendants cannot explain where they were on the night in question, and so innocent people end up behind bars.
In the past decade, some state court systems have made great progress towards providing language access. New York State, for example, provides interpreters in all types of cases, and it conducts rigorous testing to ensure that the interpreters have the language and interpreting skills that are needed for that case. At least 40 states have banded together into the Consortium for Language Access in the Courts to share resources, including court interpreter tests.
But, as a 2009 Brennan Center report found, in many states court interpreters still are unavailable in civil matters concerning housing, child custody and other basic human needs. And in criminal matters, interpreters often are unable to communicate effectively.
A report issued this summer by the University of North Carolina Law School shows what such problems look like in practice. Students observing court proceedings in their local state courts learned that LEP defendants often have to sit through initial court appearances with no interpreter. Prosecutors’ staff sometimes provide interpretation for the court and defendant in criminal cases, raising at least the appearance of bias. In civil cases, people often have to bring family members or friends with them to interpret, creating a high risk that the resulting interpretations will be inaccurate.
The UNC report also highlights DOJ’s mixed record protecting the civil rights of LEP people who need access to the courts. DOJ has repeatedly made clear, in letters resembling the one it issued in August, that the obligation to provide court interpreters flows from Title VI of the Civil Rights Act of 1964, which bars recipients of federal funding from discriminating on the basis of national origin. But DOJ has not backed up its increasingly strong warnings with strong enforcement measures. Four years ago, a North Carolina attorney sent DOJ a Title VI complaint based on many of the same language access problems highlighted by UNC’s report. DOJ sent staff to investigate, but it has taken no visible steps either to request that the courts make changes or to close the complaint.
DOJ’s recent letter warns that DOJ will “continue to review courts for compliance and to investigate complaints.” The North Carolina situation makes clear that DOJ must do more. Business as usual will not be sufficient to induce long-term Title VI violators to change. DOJ must intensify its enforcement efforts now.