Skip Navigation
Archive

Language Access in State Courts

  • Laura Abel
Published: July 4, 2009

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.


Anchor

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.


Anchor

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.