To translate or not to translate: that is the question
Sitting in a Courthouse in New York City, while pondering our purposefully slow legal system, it’s easy to glance into the jury box and see an ethnically diverse group of five or six people sitting there, reading ten-cent novels or gossip magazines. But they aren’t jurors; they are state and federally certified court interpreters and translators making up to $376 per day. Some translators are paid for by federal and state governments (if it is a criminal proceeding). Others may be contracted privately, though it is uncommon. All are expensive.
In the United States, such interpreters are a necessity. Contrary to popular belief, America does not have a national language. Nothing in the Constitution and no federal law explicitly values English above other languages. Sure, English is the de facto language of the courts and is a required part of public education, and so forth. But officially, legally, there are no solid grounds on which to deny a non-English-speaking resident translation services.
In a multiethnic melting pot like America, lacking a national language can be expensive. To begin with, the federal government is required by law to “facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States” (USC s. 1827). This means that the federal government must pay for translation services (contingent on the availability of funds) in criminal proceedings where a translator is requested (by a judge or attorney).
Though English has been declared the official language of 30 states (with an additional ten state legislatures currently considering it), every state court system must nevertheless employ translators. In other words, the presence of an official state language changes very little.
Compared to federal courts, states certify interpreters according to lower standards; translator cost varies directly with level of certification. Rules and regulations also vary from state to state, according to the availability of funds and demographic trends, but state governments or federal grants usually cover costs.
According to Senator Herb Kohl (D-WI), the state-to-state “shortage of qualified interpreters has become a national problem,” infringing the constitutionally guaranteed right to a fair trial, and subjecting poorly interpreted cases to repeated appeal, clogging up American courts.”
Senator Kohl has introduced S. 702, The State Court Interpreter Grant Program Act, which would authorize the US Attorney General to subsidize State courts in developing and implementing interpreter programs, costing an estimated $47 million over five years. Supreme Court Justice Anthony Kennedy testified before the Senate Judiciary Committee in support of this legislation.
According to the US Department of Justice (in the Division of Court Administration Director’s Annual Report), interpreters were used in federal courts for 246,037 events. Assuming that an event lasts one day – and there can be multiple events per day – and involves a federally certified translator, this estimates an upper annual expenditure of roughly $92.5 million.
If Senator Kohl’s $47 million proposal is enacted into law, the federal government would spend at least $102 million a year on court translation services alone. As it’s likely the $47 million would not cover all state costs for translation services, total courtroom translation costs could very likely exceed $102 million annually.
This figure would continue to rise along with the rate of immigration. Is there a point at which language costs become prohibitively expensive?
Senator James Inhofe (R-OK) thinks so. He reminds taxpayers that it costs between “$1-2 billion [a year] to provide language assistance under President Clinton’s Executive Order 13166, which created an entitlement to services provided in languages other than English,” citing one OMB study. Sen. Inhofe’s amendment to make English the National Language of the United States was approved by the Senate but died in the House.
Even if Senator Inhofe got his amendment passed and a national language was adopted, the act may not significantly change the current cost of court interpreting. After all, in US states with an official language, governments still cover translation and interpretation expenses. And while Sen. Inhofe’s amendment provides that federal agencies and officials are not required to “act, communicate, perform or provide services, or provide materials in any language other than English,” it includes an exception for programs specifically mandated by federal statutes, such as judicial proceedings.
Groups who support codifying English as a National Language also admit that it cannot always be so in American courts. For instance, U.S. English (the self-proclaimed oldest and largest citizen action group which favors making English the official national language), “recognizes the need for common sense exceptions permitting the use of other languages for…judicial proceedings.”
Proponents and opponents of a National Language, whether public or private, support the continuation of judicial interpretation programs. The reason stems from the belief that the right to due process, as guaranteed by the Constitution, is not possible unless those accused understand the charges and evidence brought against them. To those like Sen. Kohl and Justice Kennedy, the costs of fulfilling this right are always justified.
But is it inconsistent that the accused has to pay for an attorney (unless he or she cannot afford one), but translators always come free?
Consider that there is a logical correlation between not being able to speak your country’s native language and not being able to afford an interpreter. Not to mention the administrative costs of deciding when to pay for an interpreter or not to pay; dealing with the constitutional consequences of getting this wrong may simply not be worth the venture.