Across the country, people are stuck in a Kafkaesque nightmare: they must go to court to protect their children, homes or safety, but they can neither communicate nor understand what is happening. Nearly 25 million people in this country have limited proficiency in English (LEP), meaning that they cannot protect their rights in court without the assistance of an interpreter. At least 13 million of those people live in states that do not require their courts to provide interpreters to LEP individuals in most types of civil cases. Another 6 million live in states that undercut their commitment to provide interpreters by charging for them. And many live in states that do not ensure that the “interpreters” they provide can speak English, speak the language to be interpreted, or know how to interpret in the specialized courtroom setting. Many of those states are violating Title VI of the Civil Rights Act, which requires state courts receiving federal assistance to provide interpreters to people who need them.
When state courts fail to provide competent interpreters to LEP people in civil cases, the costs are high. People suffer because they cannot protect their children, their homes, or their safety. Courts suffer because they cannot make accurate findings, and because communities lose faith in the justice system. And society suffers because its civil laws – guaranteeing the minimum wage, and barring domestic violence and illegal eviction – cannot be enforced.
For these reasons, the federal Civil Rights Act requires state courts that receive federal funds to provide interpreters to LEP individuals in all civil and criminal cases. The constitutional guarantees of access to the courts, due process, equal protection and the right to counsel also require that interpreters be provided. The interpreters must be provided without charge. Courts must ensure that interpreters have essential language and interpreting skills. Judges and other court personnel must know when and how to use interpreters. And, courts must accord LEP individuals the same treatment they accord other individuals.
Despite these legal requirements, across the nation courts are shirking their responsibilities. We examined interpretation services in 35 states and found:
1. 46% fail to require that interpreters be provided in all civil cases;
2. 80% fail to guarantee that the courts will pay for the interpreters they provide, with the result that many people who need interpreters do not in fact receive them; and
3. 37% fail to require the use of credentialed interpreters, even when such interpreters are available.
These failings take a heavy human toll. Often, they violate federal law. Fortunately, the picture is not entirely bleak. Each of the failings is avoidable. In the last decade, the states have begun to develop programs to recruit, test, and assign court interpreters. At least 40 states have joined the Consortium for State Court Interpreter Certification, to obtain access to exams assessing the competence of their interpreters. As a result, states seeking to improve their interpreter programs have examples to follow. A revitalized federal Department of Justice is now energetically enforcing civil rights laws. And, federal legislators are looking for ways to provide state court systems with additional funding for essential court interpreter services. With this report, we hope to facilitate and accelerate all of these efforts, to help states meet their obligations, and to ensure that, in the end, justice will speak.
Guidelines for Court Interpreter Programs
Legal obligation: Provide interpreters to all LEP litigants and witnesses in all civil proceedings.
- Have a written statewide mandate in place covering all parties and witnesses in all civil proceedings.
- Have a clear standard and guidelines for determining eligibility.
- Have a clear procedure for appealing denials of interpreters. Deny interpreter waivers if they are not knowingly and voluntarily made, or if the court determines an individual has limited proficiency in English.
- Inform all litigants, witnesses and others of their right to an interpreter during their first contact with a judge or court clerk.
Legal obligation: Do not charge for interpreters.
Legal obligation: Ensure that interpreters are competent and act appropriately.
- Assess ability before appointing an interpreter.
- Ensure that interpreters remain competent.
- Adopt and require adherence to a code of ethics.
- Ensure that there is an adequate supply of competent interpreters in the languages needed.
- Allow litigants and court personnel to challenge the appointment of interpreters on competence and ethics grounds, and implement a disciplinary procedure.
- Vest a single office or individual within the court system with responsibility for implementing and overseeing the court interpreter program.
Legal obligation: Ensure that judges and court personnel who come into contact with LEP litigants or witnesses act appropriately.
Legal obligation: To the extent possible, ensure that LEP individuals receive the same treatment as other court participants.
About the Brennan Center’s Access to Justice Project
The Access to Justice Project at the Brennan Center for Justice at NYU School of Law is one of the few national initiatives dedicated to helping ensure that low-income individuals, families and communities are able to secure effective access to the courts and other public institutions. The Center advances public education, research, counseling, and litigation initiatives, and partners with a broad range of allies—including civil legal aid lawyers (both in government-funded and privately-funded programs), criminal defense attorneys (both public defenders and private attorneys), policymakers, low-income individuals, the media and opinion elites. The Center works to promote policies that empower those who are vulnerable, whether the problem is eviction; predatory lending; government bureau- cracy (including, in some instances, the courts themselves); employers who deny wages; abusive spouses in custody disputes or in domestic violence matters; or other problems that people seek to resolve in reliance on the rule of law.