The Injustice of Inconsistency: Language Access in Judicial Proceedings

Rachel Pokrzywinski

Judicial proceedings are often stressful. The stress is only compounded for an individual who must navigate the complex legal system in a language they are not proficient in. To ensure that these individuals receive adequate guidance and representation, federal law requires that, in all federal judicial proceedings, certified language interpreters must be provided to individuals whose primary—or only—language is one other than English. Furthermore, these interpreters must be provided free of charge.


Federal vs. State Programs

In 1978, President Carter signed into law the Court Interpreter Act, which required the Administrative Office of the United States Courts to establish and maintain a program ensuring that language interpreters would be made available to all who needed them. On a case-by-case basis, it is left to the district courts to determine when and how the interpreter program the Administrative Office maintains should be accessed.

Today, the Administrative Office recognizes three classes of interpreters: (1) certified interpreters (2) professionally qualified interpreters, and (3) language skilled interpreters. Each class of interpreters has its own requirements that must be met to qualify. To be recognized as a certified interpreter, an individual must complete and pass a certification program established by the Administrative Office. Professionally qualified interpreters are those who are formally recognized by select entities other than the Administrative Office, such as individuals who have passed an interpreter test managed by the U.S. Department of State or the United Nations. Language skilled interpreters are those who have demonstrated an ability to interpret court proceedings both from and into the target language, although they do not have any professional qualifications.

Unlike in federal courts, there is no national standard for states to follow when establishing programs to provide access to interpreters, although it is understood that states are required “to provide interpreters in all court settings or risk losing federal money.” The majority of states have established certification programs, with many requiring interpreters to, among other requirements, pass an exam created by the National Center for State Courts (NCSC). Minnesota is one such state, requiring interpreters pass with a score of at least seventy percent on the NCSC exam. Iowa is another, requiring interpreters to pass with a score of at least eighty percent. However, by 2016, eight states had not implemented an official process of certification, and seventeen states did not mandate a preference for certified interpreters when they are available.

Finally, although it is mandated that states make interpreters available free of charge, many states do not. The Colorado Office of Administrative Courts was recently under investigation by the Justice Department, in part to address “a rule that prohibited the OAC from providing qualified interpreters to help limited English proficient individual understand and participate in their court proceedings.” Numerous other states continue to restrict access to language interpretation during some or all proceedings.


Limited Language Offerings

In 2015, the Census Bureau reported at least 350 languages spoken in the United States. In federal courts, certified interpreters are provided for only three languages: Spanish, Navajo, and Hatian Creole. Currently, the Administrative Office only provides a single certification exam—one for Spanish speakers. Furthermore, a study by the National Association of Judiciary Interpreters and Translators found that of the near 3,000 certified interpreters in the United States, nearly 2,500 were Spanish interpreters. Notably, after English and Spanish, Chinese is the next most popular language spoken in the United States. However, there is no federal certification program for interpretation from and into Chinese.

In this regard, states also vary, likely in response to the own language needs of their specific populations.


What Harm Does This Cause?

When the programs that are established to provide access to court interpreters are insufficient, this causes problems at all levels, for all parties.

For defendants who have a limited understanding of English, the already complex legal system becomes even more difficult to navigate, as they rely on interpreters at every step of a proceeding. When an interpreter does not do their job properly, a defendant may be unaware of their rights and responsibilities. They may not fully answer questions asked by officials or their own representation. The answers they give may be relayed improperly.

For example, consider the experience of Patricia Michelsen-King, a Spanish-English interpreter who observed a court proceeding during which the appointed court interpreter confused the words for violation and rape, using the word “violación” instead of “infracción.” Although the defendant was in court for running a red light, he believed, because of the mistranslation by the interpreter, that he was being accused of rape instead. In denying the rape accusation—which he never faced, as it was nothing but a mistake—he confessed to the traffic violation.

In addition to the harm done to defendants who cannot receive adequate representation when they have no means to effectively communicate throughout the proceedings, the court itself also suffers when qualified interpreters are not available. For example, when there is a limited supply of qualified interpreters, this might cause delays in proceedings as they are put on hold until the interpreter arrives. Or it may result in a judge settling for an unqualified interpreter rather than waiting, which in the worst case may lead to mistakes sufficient for a mistrial to be declared.


Looking Forward

What can be done to resolve these issues?

First, every state must implement a certification programs that is able to provide qualified court interpreters to all individuals who need them, in all proceedings where they are required. This will likely require federal oversight to ensure compliance, as seen in the case of Colorado referenced above, where the Justice Department relied upon Title VI of the Civil Rights Act of 1964 in its investigation. This would require review of both the policies in place and their implementation.

Second, at both the state and federal level, program administrators must review the language access needs of relevant populations. Once these needs are determined, certification programs must be established such that there are qualified interpreters available for a broader range of languages. Opening the door for interpreters of more languages to be certified is the first step toward ensuring that all individuals have access to the court interpreter services they need.