ATJ Update

Language barrier:  Lack of interpreters impedes access to justice
By:  Andrew McLemore, Program Coordinator with Texas Access to Justice Commission

There's often a perception among those who work outside courtrooms that the stakes for someone accused of a crime are nearly always higher than in civil cases.

But imagine a young woman trying to escape from her abusive spouse by filing a protective order in court. Or a father fighting for custody of his daughter. Or an elderly woman facing eviction.

When limited-English speakers are placed in these positions, the stakes couldn't be higher. Some states are trying to even the odds by making sure everyone that needs an interpreter in court gets one.

California's Judicial Council approved a plan this summer to extend free interpretation services to all civil cases by 2017. The change came about at least partly because of pressure from the U.S. Department of Justice.  It's unclear how the state will pay for all the interpreters that will likely be needed, but legal aid advocates say it's a clear win for access to justice.

And it needs to happen in Texas, too, said Abby Frank, staff attorney for the Texas Civil Rights Project.  

"All people deserve a fair hearing.  If they cannot understand what is going on, then they are not getting a fair hearing," Frank said.

Frank knows firsthand how much of an obstacle that can be for someone trying to change their lives for the better. 

That example of a woman trying to escape her abusive spouse? It's very real. Frank helped represent a Houston resident in exactly that position.

"She had an abusive ex-partner and he was really using the court system as a tool of abuse because she didn’t speak English and she didn’t have money for an interpreter. She was desperately worried about protecting her daughter," Frank said.

So the Texas Civil Rights Project sued the local government on the woman's behalf for not ensuring that she had an interpreter in court with her at all times.  That case resulted in expanded access to interpreters for all Harris County residents. Harris County courts now provide interpreters at no cost to assist indigent litigants and witnesses in hearings involving domestic violence, elder abuse, family law, and child support.

Attorneys with the Texas Civil Rights Project have worked with the court administrators in Travis, Bexar, El Paso, and Lubbock counties as well to work out policies that help ensure interpreters are available.

Courts are already required to offer interpreters by federal law, but the reality is that many non-English speakers still end up in court without an interpreter unless states and local governments make detailed policies about how to provide them.

That's why services like the State Bar of Texas Language Access Fund, which connects legal aid organizations across the state with interpretation services, are so important.

"We have laws about how to get an interpreter," said Briana Stone, a staff attorney in the Legal Access Division who runs the program.  "The problem is that we haven't created a mechanism that clarifies who's supposed to pay for interpretation. For both criminal and civil law, the statutes are confusing. As a result, judges are allowing attorneys to do the interpretation, even though they're not certified.

That means many Texans are not getting the best representation — or even representation they can fully understand.

"My fantasy would be the Legislature choosing to write one rule that covers how to pay for interpreters in both criminal and civil cases," Stone said.  “The cost of an interpreter is a court cost, and should be included in the various other costs that are waived for poor litigants.”

“Theoretically, no one should be paying for interpreters, but especially poor people,” she said. “Many legal aid organizations are forced to pay for interpreters for their clients, which is a drain of resources they desperately need.”

Providing interpreters across all of Texas would be more difficult than in California because that state has a more unified, top-down court system without the greater local controls found in Texas counties, Frank said.

“But understanding what's happening in the courtroom is basic access to justice, and it's worth figuring out to make free interpretation a reality for all Texans,” Frank said.

"These are hugely important issues in people’s lives and we want to have a court system where people can get justice," she said.