Language Interpretation and the Justice System

Language Interpretation and the Justice System

Antonia Moras

Moras, Antonia. (Winter 2006). "Language Interpretation and the Justice System." Alaska Justice Forum 22(4): 1, 5-8. The problems raised by the absence of effective interpretation and translation in the courts, and in other criminal and civil justice situations, seem to be growing, both in Alaska and throughout the country. The problem is not limited to criminal cases: civil cases—child custody, domestic violence restraining order petitions, child-in-need-of-aid—also often require interpreters. The Alaska Supreme Court Fairness and Access Study, released in 1997, noted the widespread need for better interpretation services in Alaska courts and with other agencies. The court system is now leading efforts to establish a language interpretation center to forestall problems.

In late 1995, F.C. was arrested, along with another man, in an undercover drug operation conducted by the Anchorage Police Department. He had been observed apparently facilitating a cocaine sale and had a marked bill in his possession. He was charged with misconduct involving a controlled substance in the third degree—a felony.

F.C. was a native of the Dominican Republic and spoke very little English. At the time of his arrest he had a green card—that is, he was a legal resident of the United States, although not a citizen. He lived with his wife, who was a citizen, and their two young children.

He was convicted of the offense after a jury trial. He did not testify in his own defense.

During the sentencing phase of the trial, all parties showed awareness that the conviction might affect F.C.’s ability to stay in the country, and the state itself recommended that he receive informal probation as his sentence. Court notes indicate that the intent was to avoid the possibility of deportation as a result of this conviction. It was a first offense and he was considered “a least serious offender.” With a suspended imposition of sentence (SIS), the judge placed F.C. on informal probation for one year and imposed a fine. Under the SIS, if the defendant met all the conditions of his probation and paid the fine, the conviction would be discharged. No jail time was imposed.

F.C completed his probation successfully, and in 1998, the conviction was set aside. In the meantime, however, the Immigration and Naturalization Service had placed him in removal—deportation—proceedings as a result of the felony drug conviction. The subsequent discharge of the conviction under the SIS was not recognized. Under the immigration laws enacted in the mid-1990s, convictions on most drug offenses automatically result in deportation, even if, as in F.C.’s case, the individual is a legal resident of the U.S.

Although he had continued to maintain his innocence, F.C. had not appealed his original conviction. The case records show that he probably did not understand that he had a right to appeal. Facing deportation, he applied for post-conviction relief (PCR) and also began the appeals process.

As his attorneys pursued F.C.’s legal options, the second man arrested and convicted for the same drug sale acknowledged in a sworn affidavit that F.C. had not been involved in the sale for which he was arrested.

It also became evident that F.C. had not been properly informed of his right to testify in his own defense at his trial. On this basis, the judge awarded post-conviction relief. The original conviction was reversed and F.C. awarded a new trial—which the state declined to pursue. With the conviction reversed, F.C. was not subject to deportation. The case spanned more than five years.

The court records of the F.C. case make clear that a large part of the legal and procedural tangle arose because F.C. did not speak or understand English well enough to grasp what was happening to him. Although a Spanish interpreter was present in the original trial, the interpretation was inadequate to the situation. F.C. himself later stated in an affidavit that he had not understood the interpreter well during his trial. The events of the trial and subsequent legal actions as well as the documents, including the judge’s notes, reveal his regular confusion about what was being said.

The post-conviction relief turned on the fact that he was not properly informed of his right to testify in his own defense. His post-conviction counsel proved this by getting an independent translation of the trial tape. (See “Translated Transcript from F.C. Case.”) As the translation submitted during the post-conviction relief indicates, the interpretation at the trial was inaccurate at several crucial points.

In discussing the grounds for the PCR, the judge noted that the interpreter had deviated from F.C.’s actual responses, making it impossible for the court to probe his indecisiveness thoroughly enough. When asked in reference to his decision not to testify, “Is that what Mr. C. wants to do?” the interpreter replied “Yes,” when in reality F.C. had been less certain—saying, “Well, I think so.” When asked if he understood that he had a right to give testimony even if his lawyer advised him not to, F.C. had said, “I think I want to give testimony . . . I think so”—words the interpreter did not interpret to the court at all. When F.C. said, “Well, you see that the lawyer says that it seems like I understand, but it’s fine like this,” the interpreter presented his words as, “He says, I want to do whatever my lawyer thinks is best.”

The F.C. case illustrates how the absence of accurate and reliable language interpretation in legal situations can result in serious mistakes. The interpretation given at the F.C. trial was inaccurate and misguided, working to the detriment of the defendant.

The problems raised by the absence of effective interpretation and translation in the courts, and in other criminal and civil justice situations, seem to be growing, both here and throughout the country. The problem is not limited to criminal cases: civil cases—child custody, domestic violence restraining order petitions, child-in-need-of-aid—also often require interpreters.

The Alaska Supreme Court Fairness and Access Study, released in 1997, noted the widespread need for better interpretation services in Alaska courts and with other agencies. The court system is now leading efforts to establish a language interpretation center to forestall problems such as those that arose in the F.C. case.

A National Problem

The problem posed by non-English speakers in justice proceedings is not unique to Alaska. William Hewitt, a writer and researcher with the National Center for State Courts (NCSC), has worked extensively on this issue. In a concept paper written in 2004 for NCSC, “Interpreting Resources for the Justice System and Other Public Agencies,” he notes, “‘Improve interpretation services’ has been a central recurring theme in published studies of commissions and task forces across the country charged with evaluating the extent of racial and ethnic bias in our courts.”

An article by Peter Aronson in the March 22, 2004 issue of the National Law Journal presents a national overview of the problem based on interviews with more than 50 attorneys, judges and court administrators from jurisdictions across the country.

The basic problem is that the English used in legal and court situations is highly specialized and precise, with concepts and meanings particular to legal thought and procedure. By extension, the demands on an interpreter are equally specialized. Fluency in a given language is not in itself necessarily adequate for accurate interpretation in legal contexts. Unfortunately, day-to-exigencies often result in dependence on an interpreter with inadequate skills. The cases discussed in Aronson’s article illustrate the range of problems that arise in the absence of adequate interpretation, the most serious resulting in wrongful convictions on major felonies—including murder.

Aronson also notes that appeals in criminal cases where the underlying problem was inaccurate interpretation are difficult “because there rarely is a record of the communication between the defendant and the interpreter, and defense counsel don’t know what is being said between the two because typically they don’t speak the language involved.” (In the Alaska case summarized at the beginning of this article, the tape of the original trial proceedings made it possible for an independent review of the exchanges among the defendant and the intepreter and the judge. This review revealed the problems with the in-court interpretation.)

An article in the Spring 2004 issue of the Harvard Latino Law Review, “The Changing Face of Justice: A Survey of Recent Cases Involving Courtroom Interpretation,” notes that “. . . attorneys are not sufficiently educated in this area of jurisprudence to object in a timely manner and preserve a record for appeal,” but, also, that “some judges, now dealing with a deluge of court interpreter cases, are beginning to appreciate the difficulties involved in courtroom interpretation.”

Federal courts have required the use of qualified interpreters in federal criminal cases since the late 1970s and have developed a system of certification in several languages, with certified interpreters in Spanish being the most common. In addition, under Title VI of the Civil Rights Act and an executive order issued during the Clinton administration, all agencies receiving federal funds are now required to develop plans to meet the needs of those with limited proficiency in English, as appropriate to the mission of the agency.

Since the mid-1990s, state court systems throughout the country, working largely through the NCSC, have begun to devise programs to at least temper the problem of inadequate interpretation. One program in particular—the State Court Interpretation Certification Consortium—is advancing an approach based on professional testing for would-be interpreters.

Alaska

In Alaska, how extensive is the problem of non-English speakers coming into contact with the justice system? Since agency case management programs do not currently permit tracking this issue, hard numbers on actual cases are not easily assembled, but one more distant measure is the growth in the number of non-English speakers in the general population. The number of Alaskans who are less than fluent in English rose between 1990 and 2000—the years for which the most solid comparable figures are available. Table 1 presents figures from the 1990 and 2000 censuses on English fluency. In 2000, close to 31,000 Alaskans—just under 5 percent of the total state population—spoke English “less than very well”—up from 22,480 in 1990. In certain areas of the state—notably, the Bethel region, Unalaska and Kodiak—those who do not speak English fluently are a much higher percentage of the population. In addition, there are an unknown number of undocumented aliens residing in the state, most of whom probably do not speak English.

Table 1. Alaska Residents Not Proficient in English

Another measure of the state’s language diversity can be found in the list of language backgrounds for students in the Anchorage School District (Table 2). According to figures published in the Anchorage Daily News in autumn 2005, 12 percent of district students speak a language other than English at home.

Yet another suggestive figure is the number of inmates within the state’s prisons who were born in another country. In January 2005, the Department of Corrections reported 206 offenders born outside the United States. Another 227 were on probation or parole.

These figures give some idea of what the impact on the justice system, and other government agencies, may be.

Table 2. Languages Other than English Reported as "Home" Languages by Students in Anchorage Schools, 2004-2005

Oral Language Interpreter Needs Assessment

A study recently conducted by Catholic Social Services, the Foraker Group, and the University of Alaska Family Services Training Academy, under contract with the court system, provides additional data on the current use of interpreters and translators by government agencies, schools, medical institutions and other organizations throughout the state.

The study—“Oral Language Interpreter Needs Assessment Project”—comprised two separate surveys. The first gathered information on the current use of interpreters from a wide variety of respondents. In addition to the court system and other justice agencies, targeted respondents included school systems; state, municipal and borough administrations; public health institutions; social service and other non-profit agencies; libraries; real estate agencies; and banks. The second survey, sent to the same wide selection of institutions, sought to obtain information on the costs currently being incurred for interpretation services.

Responses to the user survey indicated that interpreters are most generally needed for Spanish, Russian, Tagalog, and Yup’ik, and, to a slightly lesser extent, Korean, Hmong, Samoan, Inupiaq and Ukrainian. Responses indicated an occasional need for interpreters in twenty-three other languages.

The cost survey elicited useable responses from only 71 participants, but, as a group, these indicated annual expenditures of over $1 million for interpretation services. According to the study, a conservative estimate of actual expenditures statewide would be around $4 million.

A majority of respondents to both surveys expected the number of clients needing help with language interpretation to grow.

In response to the question “What means do you use to facilitate interactions with clients?” respondents revealed a mix of arrangements: some depend on client friends, family, or volunteers; some have staff interpreters; some use bilingual staff who are not officially interpreters; and a few use a telephone service or other contractual arrangement. Others make do with no interpreters or do not serve the client.

From the perspective of the justice system in particular, one of the more troubling findings of the survey was that the qualifications of most interpreters being employed are probably not sufficient for legal and court contexts. Very few seem to have the training necessary to interpret accurately in legal situations and it does not seem that many have been formally trained in the ethics of interpretation. Very few have passed a legal interpretation test.

Individual Agencies

The needs assessment report presents responses as statewide totals, rather than breaking down the details of needs by location or type of agency. Interviews conducted by the Alaska Justice Forum with a selection of individual justice agencies indicate that at present most find interpreters through informal networking, sometimes using lists of names that have been compiled by one agency or another—including a website list developed by the court system. As the study discussed above indicates, some agencies, such as Alaska Legal Services, also make use of bi-lingual staff.

The federal public defender has telephonic access to the federal system of court-certified interpreters, which covers several languages, and can occasionally bring one of these interpreters to the state, but otherwise is dependent on the local resources.

Most of the agencies contacted, including the state and federal public defenders, Alaska Legal Services, and the court system express dissatisfaction with the current situation. Their major concerns are with the accuracy and reliability of interpretations, since the justice personnel themselves are usually unable to judge a particular interpreter’s qualifications. They express concern about having sometimes to use interpreters who may be too close to the situation—for example, using a family member to interpret when arranging for a will clearly would be problematic. Acquaintances, family members or others from a particular language community may or may not be able to detach from their own beliefs and ideas during the interpreting.

The state public defender summarized the major concerns of those handling criminal defense. First, there is often a delay in obtaining an interpreter. Public defenders usually do not assume a case until after a defendant has been before a judge and allowed to make a plea. Second, the available interpreters are not trained for legal situations. A defense attorney needs to have confidence that interpretation is accurate and transparent enough for a true conversation to occur with the client, so that informed consent is possible at all stages of the process.

AT&T Language Line

A number of agencies, including the courts, use the AT&T Language Line for interpretation in some situations. The service offers telephonic interpretation in over 150 languages and dialects. (Alaska Native language interpreters are not available.) A client can call an operator and be connected with an interpreter within a relatively short time.

Those who have used the service in Alaska give mixed reviews. Its availability has been welcomed by masters handling juvenile hearings, where previously, parents sometimes were dependent on their children to interpret. Those hearing domestic violence restraining order petitions have also found the service useful. (Grants awarded under the Violence Against Women Act contained money for interpretation and translation needs.) The Anchorage Police Department also expresses satisfaction with the service, which, in fact was originally developed to assist law enforcement. Others, including both the state and federal public defenders, express more reservations about its reliability. In its promotional material, the Language Line states that it has interpreters certified for legal matters, but the nature of the certification is not clear.

The service is expensive. In November 2005, court records show expenditures of $2523.60 for a total 900 minutes of interpretation. (Interpreters in five languages were utilized in that month: Spanish, Russian, Mandarin Chinese, Korean and Tagalog). At close to three dollars per minute, the service is probably prohibitively expensive for extended use, such as is sometimes necessary at a trial. It seems to be most suited for brief conversations. It is, however, the only option currently available in some situations and for many languages.

Court System Effort

The Alaska Court System has been spearheading efforts to better the situation. The court system is now a member of the State Court Interpreter Certification Consortium mentioned above. In addition, court administrators have been drafting a code of ethics for court interpreters that will be submitted to the supreme court for approval later this year.

The most ambitious effort has been the planning for an oral language interpreter referral center, that will provide services to government agencies, non-profits and others. Two statewide summit meetings organized by court administrators have led to the formation of a working group focused on establishing this center, which is now close to start-up.

The projected center will be administratively separate from the court system. It will be housed in the newly established Immigration Project. The estimated start-up cost is $250,000. The initial staff will include a director, training director and administrative assistant. The working group is approaching several foundations and granting sources for the funds.

To alleviate one of the major concerns of almost everyone employing interpreters, the center will focus on establishing a framework for testing the skills of those who wish to interpret in the courts and other justice system settings. It will focus first on the languages for which there is the greatest need. (There will be an Alaska Native language component to the program.) The center will probably establish a tiered process that identifies skill levels and then provides guidance and training to advance an individual’s competency.

Another role of the center will be to serve as a resource clearinghouse and facilitate connections between Alaska and expertise and resources elsewhere. In addition, the center will be able to conduct public education and continuing education for the bar and judiciary so that awareness of the complexities of translation and interpretation issues continues to grow.

Antonia Moras is editor of the Alaska Justice Forum.