Tuesday, February 22, 2011

Language Access in the Courts. The story continues….

States propose creation of a Court Improvement Program (CIP) for LEP Services
My previous post described  Executive and Judicial branch orders to provide access to the courts, and other public settings, to limited English proficient individuals. The post also described the reaction by states to the various laws and executive orders.
As noted before, the August 16, 2010 letter from Assistant Attorney General Thomas E. Perez to state court chief justices and court administrators regarding language access for LEP persons generated a wave of reactions; the wake of which is still visible. Of course, the National Association of Judiciary Interpreters and Translators (NAJIT) commended Mr. Perez for his letter, acknowledged that the provision of effective language services is often overlooked, and urged involved parties to take into account the guidance in the letter. Meanwhile, states are cutting back on interpreting services and keeping an eye on court interpreting money to deal with their fiscal and budgetary constraints.  As a result, Limited English Proficient individuals may end up paying for interpreting services.  

In a response to Mr. Perez dated November 24, 2010, the Conference of Chief Justices and the Conference of State Court Administrators lay out their views regarding the Language Access for LEP persons initiative.  The letter reflects talks between representatives of the three bodies and follows up on several initiatives states proposed to fulfill their responsibilities.  In this letter, states make their case for two types of support from the Department of Justice.  First, the chief justices request the Department of Justice send a letter urging state legislators to support and fund LEP programs. According to the justices, at the state and local level LEP programs are competing with priorities such as police.  Second, they propose the creation of a $15 million Court Improvement Program (CIP) for LEP Services to fund “innovative programs and approaches to provide access to justice for LEP individuals appearing in state courts.”  With this support, states should be able to increase, not cut, support for language access for LEP persons. They also suggest that LEP individuals who can afford language access services pay for these services, which would liberate “much needed funding.”

Since the obligation for the states to provide language access to the courts comes from the federal level, the states seem to be telling the federal government should share this obligation. Is this a legitimate claim by the state courts or just a way to avoid or delay compliance with their obligation?  Has Mr. Perez reacted to this letter? Is the Department of Justice willing to have LEP people pay for language services provided in the state courts?  This remains to be seen.  In the meantime, interpreting services continue to be needed, and I hope interpreters and translators all over the United State will continue to strive to further their professional skills and contribute to the development of this nascent field. 
 

Friday, February 4, 2011

Court Interpretation in the United States: Struggles and Successes

Interpretation in public administration settings, especially the courts, is too often viewed as a necessary evil: a legal requirement that must be complied with at the minimum effort and investment possible; a service to be provided to a population that lacks stature, namely immigrants, both documented and undocumented. However, it stems from an ideal that is been said to be the core of this nation: fairness and justice for all.

Title VI of the Civil Rights Act of 1964 prohibits discrimination against “any person in this country on the ground of race, color, or national origin” or exclusion “from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Consequently, it requires state courts that receive federal funds to provide interpreters to limited English proficient (LEP) individuals in civil and criminal cases. The constitutional guarantees of access to the courts, due process, equal protection and the right to counsel also require the provision of interpreting services at no charge for defendants. Under federal law, courts must also ensure that interpreters have essential language and interpreting skills.

Since these provisions have been construed to include any person in the United States and be applicable to any program or activity receiving funds from the federal government, they provided the genesis of interpretation and translation services in public administration settings in the U.S., including the courts and well as medical, educational, and social services. The Brennan Center for Justice  a public policy and law institute that focuses on issues of democracy and justice estimates that about 25 million people in the United States have limited proficiency in English and need an interpreter in court. It further notes at least 13 million of them live in states that do not require the provision of court interpreting services in most types of civil cases, and six million live in states that fail to uphold Title VI provisions and charge LEP persons for interpreting services or have ill-prepared “interpreters” providing such services. 

In October 1978, President Carter signed  the Court Interpreters Act of 1978, establishing the right for any individual involved in a court proceeding to have a certified or otherwise qualified court interpreter if his/her communication or comprehension capabilities are inhibited because of a language barrier or a hearing or speech impairment.The Federal Court Interpreter Certification Examination program (FCICE) was created to implement the provisions of the Court Interpreters Act of 1978; that is, to define criteria for certifying interpreters qualified to interpret in federal courts and to assist the Director of the Administrative Office of the U.S. Courts (AO) in maintaining a list of federally certified court interpreters. These requirements also apply to state courts.

Authority over the federal and state court interpreter certification programs falls on the National Center of State Courts (NCSC) under contract to the Administrative Office of the United States Courts. NCSC oversees the court interpreter certification program through the Consortium for Language Access in the Courts (formerly the Consortium for State Court Interpreter Certification), which was created in August 1997 with the mission “to facilitate court interpretation test development and administration standards, to provide testing materials, to develop educational programs and standards, and to facilitate communication among the member states and entities, in order that individual member states and entities may have the necessary tools and guidance to implement certification programs.” Aside from developing and administering testing material, the Consortium has conducted research on certification examination outcomes and career trends. Research reports and other information on court interpreter issues can be found at the Consortium’s website.

While the Consortium could arguably be said to be carrying out its mission rather well, states seem to be struggling to comply with the aforementioned provisions. To comply with the provisions, legislatures have to allocate additional financial resources for the courts to offer translation and interpretation services. In states where there is little or no advocacy for language access for LEP persons, reluctance to allocate resources for interpreter services is rather great.

In August 2000, President Clinton’s Executive Order 13166 "Improving Access to Services for Persons with Limited English Proficiency" and its Limited English Proficiency Resource Document:  Tip and Tools from the Field strengthened the Limited English Proficiency initiative. Executive Order 13166 requires that federal agencies take “reasonable steps to provide meaningful access for LEP people to federally conducted programs and activities (essentially, everything the federal government does).”  It also required that “every federal agency that provides financial assistance to non-federal entities publish guidance on how those recipients can provide meaningful access to LEP persons.” Ten years later, the Attorney General stresses the importance of complying with this executive order 13166 in order to turn policy into reality.

In June, 2010, the U.S. Attorney General issues a memorandum to Heads of Department Components reminds obligations set forth in Order 13166. In August 2010, less than a month later, Assistant Attorney General for the Civil Rights Division of the Department of Justice (DOJ) Tom Perez sent a similar reminder to all chief justices and court administrators in an attempt to bring courts into compliance with provisions that seek to provide language access to justice to LEP persons. However, it looks like clarifications were in order as the letter gave rise to a series of questions by the state courts, including definition of the extension of the term “court” and the Department of Justice’s expectations on telephone interpretation and certification for less frequently used languages. Certified interpreters, on the other hand, continue to request review of the term otherwise qualified interpreters.  States like South Carolina include in their list of certified and otherwise qualified interpreters individuals who have only completed a two-day orientation session, which do not assess the candidate’s language proficiency and interpreting skills. Of course, compensation for otherwise qualified interpreters is significantly lower. In some cases, non-certified interpreters have been grandfathered based on years of services provided to the court. However, what decision makers seem not to take into account when hiring a non-qualified interpreter is the cost of cases on appeal.

A lot has been achieved regarding the Language Access for LEP Persons initiative; however, compliance with the various dispositions remains an issue. The good news is that forty states had joined the Consortium as of June 2009. Court interpreter certification programs, however, vary widely from one state to another. Their organizational structure and level of state financial support vary as well. A good example of a strong program can be found in Indiana. The Indiana Court Interpreter Certification Program is the result of an interim recommendation made to the Supreme Court in 2000 by the Indiana Commission on Race and Gender Fairness on ways to improve race and gender fairness in the courts, legal service providers, state and local governments, and public organizations. The court interpreter certification program is now the most important program of the Indiana Commission on Race and Gender Fairness. It administers the certification examination twice a year, and offers not only the compulsory two-day orientation session for aspiring court interpreters but also skill-building workshops. It also has an advisory board made up of a cross-section of stakeholders across the state, including judges, public defenders, law professors, and of course, interpreters, which allows to program to receive feedback from a wide array of sources. All this has been accomplished with the support of the entire state judiciary. Indiana is currently exploring continuing education activities as a requirement for certified court interpreters.

In July 2008, in  an 88-page report on an extensive study of language access in state courts, the Brennan Center for Justice noted that an examination of interpretation services in 35 states found that 46% fail to require interpreting services in all civil cases; and 80% fail to guarantee that the courts will pay these services, which means that many people who need an interpreter do not have one. As indicated before, states like Indiana, New Jersey, and Ohio, as well as Washington, D.C. have taken significant steps to provide language access to the courts to LEP persons. Interpreters in Washington, D.C. marvel at the number of languages in which interpreting services are provided and the coordination structure the court interpreter manager has put into place to run this service in a smooth and effective fashion.The Brennan Center for Justice’s report includes an account of the interpreter certification situation in each state of the union.

Interpreting in public administration settings is a profession that has evolved in nearly four decades from being a service usually provided by ‘bilingual’ but otherwise unqualified individuals, including untrained family and staff members. It is now a profession practiced by certified or otherwise qualified interpreters. Immigrants have been at the heart of this countries’ foundation and this is not about to change, even with radical legislation like that  recently enacted in Arizona. On the educational front, more and more higher education institutions are seeing translation and interpretation as subjects worthy of serious scholarship. A great deal is yet to be done in this arena, but a positive trend has, without a doubt, been set. This is a ‘story’ to be continued…