Equal justice for all has long been one of the fundamental rights our country has believed in and has been built upon. However, when language barriers disrupt the process of justice and prevent communication, we lose the basic values of our justice system. To maintain these values, every litigant, victim, and witness must comprehend what is happening in the courtroom.
"When state courts fail to provide competent interpreters to LEP people in civil cases, the costs are high. People suffer because they cannot protect their children, their homes, or their safety.Courts suffer because they cannot make accurate findings, and because communities lose faith in the justice system.And society suffers because its civil laws – guaranteeing the minimum wage, and barring domestic violence and illegal eviction – cannot be enforced."Hon. Judge Eric T. Washington, Senior Judge, DC Court of Appeals, Remarks at 2013 CLAC Conference
Criminal defendants, civil litigants, victims, and witnesses look to the justice system to afford them fair trials and to resolve their disputes legally and fairly. “For individuals to be afforded equal justice, and for courts to achieve their mission of providing equal justice accessible to all, court systems must develop viable systems to provide competent interpretation services to limited and non-English speakers. Our promise of justice for all demands nothing less.” COSCA White Paper, Court Interpretation: Fundamental to Justice.
However, the challenge of ensuring equal justice in our state courts cannot be understated. Not only does the Limited English Proficient (LEP) population continue to increase, the number and diversity of languages, including rare languages, is growing. Over 25 million people in this country have limited proficiency in English, which greatly hinders their ability to protect their rights in court without the assistance of an interpreter. American Community Survey 5-year 2011-2015 data indicates the following:
- An estimated 62 million American residents spoke a language other than English. Approximately 25 million of these (or 41%) were also LEP.
- An estimated 37 million American residents were Spanish speakers. Approximately 42% of these were LEP. An estimated 63% of the Spanish-speaking population over the age of 65 was LEP. An estimated 21% of the Spanish speaking population under the age of 18 was LEP.
- Approximately 11 million persons spoke Indo-European languages other than Spanish. An estimated 10 million spoke Asian and Pacific Island languages. An estimated 3 million persons spoke languages not included in any of these categories.
While the U.S. Constitution does not expressly guarantee the right to an interpreter in criminal cases, courts have found that an interpreter is necessary to effectuate the guarantees of the Fifth, Sixth, and Fourteenth Amendments’ right to a fair trial, right to be present at trial, right to confrontation, right to effective assistance of counsel, and right to due process. In civil proceedings the constitutional right to an interpreter is less settled, courts have not uniformly held that civil litigants are entitled to an interpreter under the Constitution; however, some state and federal cases have recognized that interpreters are necessary to ensure meaningful participation.
In addition to constitutional protections and any state statutes in effect, the obligation to provide language access services stems from the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et Seq. (Title VI); Executive Order 12250; Executive Order 13166 (2000); Omnibus Crime Control and Safe Streets Act of 1968; and the Court Interpreters Act. Courts that receive federal funding are required to take reasonable steps to ensure that an LEP individual has meaningful access to the court and can communicate effectively.
The U.S. Department of Justice (DOJ) has voiced its commitment to ensuring meaningful access to federally funded programs and services for LEP individuals. In 2002, DOJ issued guidance to recipients of federal funds providing detail on ensuring meaningful access to state courts. Then, in 2010 the DOJ issued a letter to the state court chief justices and administrators that provided clarity on the requirement to provide meaningful access for LEP individuals in courts receiving federal financial assistance.
Following the issuance of these letters, the DOJ worked with state courts to ensure enforcement, including collaborative cooperation, investigations and voluntary compliance, and through the issuance of letters of finding and engagement efforts when negotiations for voluntary compliance were not reached.
In its 2010 letter, the DOJ acknowledged that the fiscal crisis was having an impact on state courts’ ability to make progress in providing meaningful access for LEP users. While the letter recognized that many state courts were in the midst of a court funding crisis, it laid out a clear expectation of progress toward compliance.
DOJ acknowledges that it takes time to create systems that ensure competent interpretation in all court proceedings and to build a qualified interpreter corps. Yet nearly a decade has passed since the issuance of Executive Order 13166 and publication of initial general guidance clarifying language access requirements for recipients. Reasonable efforts by now should have resulted in significant and continuing improvements for all recipients. With this passage of time, the need to show progress in providing all LEP persons with meaningful access has increased. DOJ expects that courts that have done well will continue to make progress toward full compliance in policy and practice. At the same time, we expect that court recipients that are furthest behind will take significant steps in order to move promptly toward compliance.
Following the issuance of the 2010 letter, the DOJ opened a number of investigations across the country. Below is a partial listing of some of the cases that had been opened during that time period and now have successfully been closed.
New Jersey: The Department of Justice and the New Jersey Judiciary entered into an agreement on April 7, 2014. The resolution letter outlines initiatives implemented by New Jersey to ensure comprehensive language assistance. The initiatives include, among other things, interpreter services for litigants, multi-lingual signage in courthouses, services to assist LEP patrons with transacting business such as bilingual self-help kiosks and tutorial videos, the translation of over 340 statewide pro se forms and brochures, translated notices, sight translation in emergent and time-sensitive matters and the advertisement of these services in publications widely read by the local Latino community.
Pennsylvania: On April 24, 2017, the Department of Justice released a Memorandum of Understanding with the Unified Judicial System of Pennsylvania, which addressed administrative complaints. The MOU was signed following the publication of the Language Access Plan of the Unified Judicial System of Pennsylvania. The Language Access Plan provides for increased language access training and data collection procedures for Pennsylvania’s 60 judicial districts. Pennsylvania committed to the implementation of its Language Access Plan within the timeframes stated therein, and to establish a Monitoring and Evaluation Team. Pennsylvania will share with DOJ information pertinent to the implementation progress of the LAP.
Kentucky: The Justice Department reached an agreement with the Kentucky Courts to ensure equal access for Non-English speakers on June 22, 2016. During the course of the department’s review, the KY AOC has created and implemented a complaint system translated into a dozen languages, conducted training with court staff, and improved the quality and efficiency of service. Kentucky entered into a twelve-month monitoring phase as a condition of the agreement.
Colorado: The Justice Department closed its case with Colorado following successful implementation of reforms with the Colorado Judicial Department on June 21, 2016.
In 2012, the Colorado Office of Language access issued a strategic plan. DOJ has closed its case following the full implementation of that plan. Through this plan, Colorado revised standards for testing, created a state telephonic interpreting center, established an advisory committee, improved software systems, conducted staff and judicial trainings, designed multilingual signage, improved the complaint and discipline system, and translated hundreds of court forms into Spanish.
Rhode Island: The Justice Department closed its case with Rhode Island following the implementation of judiciary reforms on April 21, 2016. DOJ and Rhode Island entered into an agreement on April 9, 2014. The Rhode Island Judiciary developed a system for designated staff qualified to provide bilingual service to court customers, posted signage in six languages through each court house, developed new e-filing requirements to better capture interpreter needs data, translated forms and website content into commonly spoken languages, created a multilingual complaint policy, and created a multilingual notice of right to language assistance and adopted a rule requiring service of the notice to defendants. 
Hawai’i: The Justice Department reached an agreement with the Hawai’i Judiciary on March 24, 2015. Collaborating with DOJ, Hawai’i has issued clear policy guidance relating to service of LEP court users, implemented a campaign to raise public awareness of language services offered by courts, created 14 language-specific web pages, initiated the creation of a language assistance complaint system, provided mandatory training for judicial staff, revised its court interpreter assignment system, and implemented oversight measures to ensure Title VI compliance.
Michigan: On September 17, 2013, the Department of Justice directed a letter to the Michigan Supreme Court to address complaints regarding service to LEP individuals.
National Collaboration to Help States
In light of the enormity of the fiscal, administrative, and procedural challenges that were facing individual jurisdictions to reach compliance, national organizations came together in a concerted effort to assist states in improving their language access services. There was clear commitment to helping jurisdictions evaluate their services and fill any gaps in compliance. What resulted was an unprecedented initiative that would benefit all jurisdictions.
In 2011, with funding from SJI, NCSC, the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) launched an initiative to assist jurisdictions in reaching their goal of providing effective LEP services. The initiative involved a multi-component project including:
- A pre-summit assessment of courts;
- The National Summit on Language Access in the Courts; and
- The National Call to Action publication
The Summit, the Call to Action, and the impact of the entire initiative are detailed in the following sections of this report.
 In 2015, the number of LEP individuals in the United States over the age of 5 was 25.4 million, representing 8.6 percent of the total U.S. population. This is an approximately 1% increase in the LEP population over the age of 5 since 2010. In 2010, the LEP population was 25.2 million, or approximately 9 percent of the overall population of the United States. In 2015, the five languages most spoken by LEP individuals were Spanish (16.3 million), Chinese (1.7 million), Vietnamese (859,295), Korean (613,011), and Tagalog (538,482). LEP Data Brief: Limited English Proficiency in the Unites States: Number, Share, Growth and Linguistic Diversity, Migration Policy Institute, p. 3 (December 2011) (Migration Policy Institute LEP Data Brief), http://www.migrationpolicy.org/research/limited-english-proficient-individuals-united-states-number-share-growth-and-linguistic; U.S. Census Bureau. Languages Spoken at Home by Ability to Speak English for the Population 5 Years and Over, 2011-2015 American Community Survey 5-Year Estimates. https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_15_5YR_B16001&prodType=table; Language Spoken at Home, U.S. Census Bureau. 2011-2015 American Community Survey 5-Year Estimates. https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_15_5YR_S1601&prodType=table
 American Bar Association Standards for Language Access in Courts, February 2012 (Resolution 113), p. 25.
 A press release is available at: https://www.justice.gov/opa/pr/department-justice-and-new-jersey-judiciary-collaborate-ensure-provision-language-assistance. The text of the agreement is available at: http://www.lep.gov/resources/courts/DOJ_NJ_Agreement_ltr_4-8-14.pdf
 https://www.justice.gov/crt/page/file/959891/download in March 2017.
 A press release is available here: https://www.justice.gov/opa/pr/justice-department-reaches-agreement-kentucky-courts-ensure-equal-access-non-english-speakers. Letter of resolution is available at: https://www.justice.gov/crt/file/871056/download
 A press release is available at: https://www.justice.gov/opa/pr/justice-department-closes-case-following-colorado-judiciary-reforms-removing-language. The closure letter is available at: https://www.justice.gov/opa/file/868651/download
A press release is available at: https://www.justice.gov/opa/pr/justice-department-closes-case-after-rhode-island-judiciary-reforms-provide-equal-access. The closure letter is available at:https://www.justice.gov/usao-ri/file/843376/download. The text of the agreement is available at: https://www.lep.gov/resources/MOA_RI_040914_signed.pdf. A press release is available at: https://www.justice.gov/opa/pr/department-justice-and-rhode-island-judiciary-enter-agreement-provision-language-assistance
 A press release is available at: https://www.justice.gov/opa/pr/following-justice-departments-review-hawaii-state-court-commits-equal-access-non-english. The agreement letter is available at: https://www.lep.gov/resources/Hawaii_Closure_ltr(3%2024%2015).pdf.
The letter is available at: https://www.lep.gov/guidance/091713_AAG_Letter_to_MI_Re_Court_Rule.pdf