Decoding Language Issues May Balance Scales of Justice

BATTLE CREEK, Mich. -- Utilizing the Michigan justice system creates unique challenges for Burmese immigrants because for most, English is their second language. The first of these challenges is meaningful access to the courts; the second is a provision in the law that may end up costing people an extra fee for use of translation services.

Battle Creek's Burma Center, founded in 2011, serves the approximately 2,500 Burmese residents in the area. Elizabeth Lian, program manager, said that while the center runs a community garden, programs for family services, an after-school program, and myriad other programs; fifty percent of her work with the center is spent in the courts.

Burmese immigrants are dually challenged for meaningful access. The court system is difficult to understand and the language barrier is complicated.

“...When I go to court, with permission of whomever I am interpreting for... they usually are very understanding about allowing me to do a cultural education piece a little bit,” Lian said. “With their approval, I would sit down with a client and tell them, 'So, in the United States, they have this system, it’s called this,' and just a quick run through of what [court procedures] are called.”

In many courtroom situations, a telephone translation system is used. Lian says that the telephone translation system, while effective for some, is not as effective for people speaking Burmese languages and dialects because the Burmese language groups and dialects are very limited.

“These languages come from communities that don’t have court systems; that [don’t] really have civilization so their word usage is so basic," Lian said. "Imagine a child with the vocabulary of a 4 year old...that’s how limited our language is.”

Lian says that she usually gets called for in-person translation during the sentencing phase, and that she is frequently faced with situations where, when she arrives, the defendants do not have a complete understanding of what is going on.

“...When you’re supposed to translate words like prosecution, guilty [or] not guilty, there are no terms for [interpreters] to use," she said. "So what happens is interpreters [through telephone interpretation] would usually repeat the English word.

"They don't know it's not effective.”

Michigan Law attempted to address the issue with persons having a Limited English Proficiency (LEP) by amending Michigan Court Rules in 2013.

Michigan Court Rule 1.111 requires all courts to provide court-appointed foreign language interpreters for LEP persons.

"The Court also adopted an administrative order requiring courts to create and submit language access plans specifying how they will provide Limited English Proficiency (LEP) persons with access to court services outside the courtroom," Referee's Quarterly states in their Spring 2014 edition.

An additional rule, MCR 8.127, establishes a board to recommend interpreter certification requirements and to review complaints against interpreters.

Three years ago when the courts adopted the rules, it was during a Department of Justice investigation of national origin discrimination by Michigan State Courts. Michigan courts may have, however, missed the mark when they took steps to address the issue.

"As a result of this ongoing investigation, the Michigan Supreme Court has acknowledged publicly that LEP individuals in the state are denied access to courts, but in issuing MCR 1.111 without the concurrence of DOJ, the Court has created a new barrier to meaningful access for certain court users in the form of a surcharge, akin to a tax, based on English language ability," a September 2013 letter from the Michigan U.S. Attorney's offices states.

Providing translation services, by law, is not as simple as just making them available though. There has to be a plan in place to pay for the services and a decision as to who is responsible for paying.

Lian and DOJ both expressed concern with the idea that LEP individuals whom the courts deemed able would be charged for translator services.

"The rules we adopt today provide court-appointed foreign language interpreters for truly needy LEP persons to support their access to justice, while not compelling taxpayers to bear the burden for LEP persons who can afford to pay for this service," the court order detailing the ammended rules states. "Our rules provide for court interpreters without cost to indigent LEP persons.

"If a party is financially able to pay for interpretation costs, the court may order the party to reimburse the court at the conclusion of the case or court proceeding."

Lian feels that because Burmese immigrants are taxpaying contributors to the community at large, translation services should be covered by public funds. She says that Burma Center only charges $60 to the courts for translation services. This is a discount over what other companies charge for similar services rendered.

The court order seems to indicate, however, that no one would be denied translation because of financial need.

"Moreover, our rules provide additional protection by allowing the trial judge to provide a court interpreter without cost to any LEP party, based on the judge’s finding that assessing costs for the interpreter would limit that person’s access to court," the order says.

DOJ didn't think that the language in MCR 1.111 was protection enough.

"This [potential charge for translation services] is in stark contrast to SCAO’s rules prohibiting all state courts from charging deaf or hard of hearing individuals for interpreter costs regardless of income, or from requiring them to provide their own interpreters," says the DOJ letter.

Lian says that she and other Burma Center officials have plans to speak with judges to detail their concerns about the effectiveness of translation services in the Michigan legal system.

Editors note: A spelling mistake in earlier versions of this story has been corrected. The Tangled Thread regrets the error.

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