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Tuesday, July 07, 2009

Ind. Decisions - "People Forced to Appear in Court Without Interpreters, Violating Federal Law"

From the Jan. 9, 2008 Indiana Supreme Court decision in Jesus Arrieta v. State of Indiana:

American courts regularly supply interpreters at public expense to criminal defendants who are indigent. This appeal presents quite a different proposition: what should the court supply when the defendant is solvent?

When appellant Jesus Arrieta came before the court for his initial hearing on drug charges, the court provided an interpreter at public expense because the defendant did not speak English. The defense subsequently requested a court-funded interpreter for all remaining proceedings. The court declined to pay for these services absent a showing of indigency. The Court of Appeals affirmed on interlocutory appeal.

We distinguish defense interpreters, who simultaneously translate English proceedings for non-English-speaking defendants, from proceedings interpreters, who translate non-English testimony for the whole court. We conclude that courts should regularly provide proceedings interpreters at public expense when they are needed, regardless of a defendant’s indigency even when the defendant speaks English, as they are part of the basic apparatus of a court’s operation. By contrast, we see little reason why the public should finance defense interpreters for defendants who possess financial means.

Here is a list of related ILB entries.

The Brennan Center for Justice at NYU School of Law has just issued an 80-page report, Language Access in State Courts. From the press release:

A new study of 35 states exposes the failure of many state courts to provide interpreters to people with limited proficiency in English (LEP) - often in violation of Title VI of the Civil Rights Act of the United States.

Language Access in State Courts, which selected states with the highest proportion of people with LEP, shows that when state courts fail to provide competent interpreters to people with LEP in civil cases, the costs are high. Families trying to hold on to their homes or trying to obtain hard-earned wages lose out and courts can't make accurate findings.

"The human toll is tragic," says Laura Abel, author of the report and Deputy Director of the Brennan Center's Access to Justice Program. "Children are forced to interpret for their parents in sensitive divorce and child custody cases. People leave court without knowing what happened, and can't comply with court orders. Judges don't know what witnesses are saying."

The release of Language Access in State Courts coincides with the introduction of the State Court Interpreter Grant Program Act by Senator Kohl (D-WI). The new legislation would authorize $15 million per year, for three years, to enable state courts to improve their interpreter programs.

The Department of Justice has also renewed its commitment to enforce interpreter requirements in the state courts. Just this past February, DOJ warned the Indiana Supreme Court that court systems receiving federal funds violate Title VI of the Civil Rights Act of the United States if they charge money for interpreters. [ILB - here is the DOJ warning.] The report provides guidelines for advocates, legislators and judges to adopt best practices and to bring their states into compliance with Title VI.

Under Title VI, state and county courts receiving federal funds must provide interpreters to individuals who need such help to understand court proceedings. Most court systems receive such funding and are covered by the law. * * *

Language Access in State Courts also identifies clear violations of the law. In DuPage County, Illinois, for example, the courts tell the public: "There are no statutory requirements nor any constitutional obligations that public funds be expended for appointment of language interpreters in civil cases." California Governor Schwarzenegger has vetoed bills providing funding for interpreters in civil cases.

From p. 4 of the Report:
As a rule, state courts have recognized their obligation to provide interpreters to people facing criminal charges, although the quality varies widely, and some states improperly charge at least some criminal defendants for interpreters.[7] Although most state courts also have a constitutional or statutory obligation to provide interpreters in civil proceedings, some states have been faster to comply than others. Some ensure that interpreters are made available, free of cost, to all parties and witnesses in all civil proceedings. Others provide interpreters in only some types of civil proceedings, charge for the interpreters they provide, or provide interpreters whose competence has never been assessed.
[7] Those states include at least Alaska, Arkansas, Indiana, Florida, Louisiana, Nevada, Oklahoma, Tennessee and Utah. Alaska R. Governing Admin. of All Courts 6(b)(2) (criminal defendants who need an interpreter because they are LEP must pay for that interpreter); Ark. Code Ann. 16- 89-104(b)(2) (permitting court to decide how fee for services of interpreter for defendant shall be paid, but exempting acquitted defendants from obligation to pay); Ark. Admin. Office of the Cts., Dist. J. Benchbook, Form Misc. 11 (listing “Interpreter Fees” as a category of “Criminal and Traffic Fees, Restitution and Forfeitures” to be collected by the district courts), available at http://courts. state.ar.us/judicial_education/documents/District_Judges_Benchbook_v2.pdf; Arrieta v. State, 878 N.E.2d 1238 (Ind. 2008) (holding that the courts can charge non-indigent criminal defendants for the cost of interpreters who interpret only for them, not for the entire courtroom); Fla. Stat. § 29.0195 (requiring trial courts to recover the cost of an interpreter from parties with the present ability to pay); Fla. 6th Jud. Cir., Interpreters, available at http://www.jud6.org/LegalCommunity/ Interpreters.html (“If you are not indigent, the Trial Court Administrator is required by law to recover interpreter costs on behalf of the state. If you are found to have the ability to pay, you will be billed after your hearing for the costs of the service provided to you, which are normally $35 to $68 an hour with a two hour minimum, plus travel costs.”); Baton Rouge City Court, En Banc Order Regarding Interpreter Appointment Procedure (July 1, 2003) (“Pursuant to C. Cr. P. Art. 887, a defendant found guilty or who pleads guilty to a criminal/traffic matter, and who requires the need of a foreign language interpreter, shall be cast for all costs associated with the appointment of the foreign language interpreter . . . .”); Nev. 8th Jud. Dist. R. Prac. 7.80(a) (providing that interpreter costs will be paid for indigent criminal defendants, but that in other cases the party requesting the interpreter must pay before interpreter services are provided); 28 Okla. Stat. Ann. § 153.A.10 (requiring the court clerk to collect from all convicted defendants the actual cost of all interpreters for LEP individuals): id. § 153.H (providing that prior to conviction parties cannot be required to pay, advance or post security for interpreter services); id. § 153.K (providing that for indigent defendants the court “may” waive all or part of the interpreter services costs, or require the payment of those costs in installments); Tenn. R. Crim. Proc. 28 (requiring the cost of an interpreter to be taxed to non-indigent criminal defendants); Utah Code Ann. sec. 7B-1-146(3) (allowing judges to impose the cost of an interpreter on non-indigent criminal defendants); Utah R. Jud. Admin. 3-306(12)(B) (1) (stating that justice courts need only pay for interpreters for indigent criminal defendants).
The Report cites Indiana statute IC 34-45-1-3 for "a mandatory written requirement that interpreters be appointed in all civil cases" and IC 34-45-1-4(b) to illustrate that, in Indiana, whether government pays interpreters appointed by the court and/or whether government charges litigant for the cost is within the court’s discretion in civil cases. See p. 19 [24 in PDF] of the Report to see a map comparing Indiana and other states re civil cases.

Finally, accompanying the Court's budget request to the 2009 session of the General Assembly was this letter of transmittal from Chief Justice Shepard. Item #5, at pages 7-8 discusses Indiana's current efforts to address the problem.

Posted by Marcia Oddi on July 7, 2009 09:36 AM
Posted to Courts in general | Ind. Sup.Ct. Decisions | Indiana Courts