Updated: Dec 29, 2022
The first time I had to prepare a presentation for aspiring interpreters, along with other colleagues, I was tasked with talking about the history of interpretation and translation. It was supposed to be for a four-hour workshop, and 6 of us had something to present. Let me tell you, once I started digging into history, I ended up with some 10 hours of material to present, which I painfully had to narrow down to 20 minutes. So yes... hello, my name is Cristina and I am a word-o-holic and history-o-holic, and a… I think they call that “a nerd” in America?
Anyway! I'll try not to bore you! But this is information that is very important, especially for my dear attorney friends. Very often all that knowledge you acquire in law school fades away in time, until you come upon a non-English speaking client and then panic sets in. That’s when I see you trying to hide when the judge is offering an appointment and the defendant is not an English speaker! Suddenly everybody starts picking up their phones, looking at watches, or getting coughing fits. You can't hide from me, because I did the same thing in high school when the math teacher started asking questions!
Seriously speaking now, you are the ones tasked with protecting the rights of your clients, the integrity of a case being prosecuted by the State, or even ensuring the fair and legal right your client has to fully understand what are the pros and cons of a civil or criminal trial. I wanted to talk about this right away, so you can come back here and find it anytime you need some resources.
First of all, I invite everyone to set aside all of our biases and personal or political opinions, and let’s get to the facts!
Interpreters have existed since ancient times, in the many environments and interactions that humans have encountered throughout history. What is fairly new, is the existence of mandates and guidelines regarding the use of credentialed interpreters in US Courts, as well as other fields such as healthcare.
We could say that the first step forward was made by Title VI of the Civil Rights of 1964, which was enacted to ensure equal distribution of federal funds. Title VI reads: “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” So, you might ask, “What does that have to do with interpreters?” Well, language happens to fit into that little item called “national origin”.
Quick stop: **New term*: Limited English Proficiency (LEP) is a term used in the United States that refers to a person who is not fluent in the English language, often because it is not their native language. Both LEP and English-language learner (ELL) are terms used by the Office for Civil Rights, a sub-agency of the U.S. Department of Education.
So, we now had Title VI, but there wasn't a clear message about what it meant, or what impact or relation it could have in foreign language provision. Certainly LEP individuals were already navigating the medical and judicial scenes, and anyone who knew some Spanish, or whatever language they thought the person spoke, would be grabbed to act as "translator" as they would call us, including patients or defendant's minor children who could speak English. In fact, I must say that we still hear this happening today, as in children interpreting for their parents in divorce cases!
The Interpreters Act of 1978 introduced the first serious guidelines, instructing the Director of the Administrative Office of the United States Courts to establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States. This initiated the creation of Court Interpreter Credentialing programs throughout the country and set the bar for who the courts can utilize as interpreters in the judicial setting.
Nonetheless, that was still not a clear-cut directive that would compare to “you can't practice law without a license”, and that is still the case today. Maybe there will be a time when that is possible for foreign language interpreters too, but you simply can’t establish a rule that could not be fully implemented. You would need to have enough credentialed interpreters to cover the needs, and that is virtually impossible today. What is important is the fact that now there was at least a protocol to follow to ensure that training is created, and subsequently an effort from the courts to make an attempt to procure the interpreter with the highest level of training or credentialing available first. In practical terms, we could say that today in US Courts, Spanish interpreters’ certification has become a must. Although the number of certified interpreters is still very small, there are enough credentialed Spanish interpreters to somewhat force the courts to make accommodations around the interpreter's availability. The same may be true for other languages in different parts of the country.
We often encounter languages of lesser diffusion, even aboriginal languages, for which a trained or certified interpreter simply does not exist. This could be because a certification program, or even a test has not yet been developed for such languages, or simply because there are few or none speakers of that language who can also speak English with the necessary proficiency to go through the certification process. In these cases, we are still forced to use non-credentialed interpreters, but we do have a process to follow before we get to make that decision.
Continuing with the history and the law, in August of 2000, President Clinton signed Executive Order 13166 in an effort to find a way to define and enforce the mandate of Title VI. The order came into place "requiring Federal agencies to examine the services they provide, identify any need for services to those with limited English proficiency (LEP), and develop and implement a system to provide those services so LEP persons can have meaningful access to them." the Executive Order also requires that the Federal agencies work to ensure that recipients of Federal financial assistance are compliant, and to assist Federal agencies in this process, the U.S. Department of Justice issued a Policy Guidance Document, "Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination Against Persons With Limited English Proficiency" (LEP Guidance).
One very important point that was made in this process is that the courts, as well as other organizations falling under the umbrella of these regulations, must provide interpreters free of charge to the LEP individuals they serve, and they must make it known to the public that the service is available and provided free of charge. The problem that we still have today is that there is no oversight mechanism in the judicial setting to evaluate compliance or lack thereof, and therefore no consequences for non-compliance.
Let me take a little detour here so I can illustrate what all the above came to look like in real life.
There are countless programs and organizations in our country that receive federal funding, and likely most of them could not exist without those funds. What Executive Order 13166 told these organizations was, in layman's terms, is "you must provide the same access and quality of service to people who do not speak English as you do for English speakers, or else we will take all that money away from you". After my many years of experience, I would add "...IF we find out." Let me show you what I mean!
If you walk into one of the many prestigious hospitals in this country, I can guarantee that you will find signs in multiple languages, maybe telephones equipped with two handsets used to communicate with LEP individuals using a telephonic interpreter, bilingual forms, and even an interpreter department. You will find that they have a clearly established protocol to follow if they encounter an LEP patient or family member. You may not think of these hospitals as organizations receiving federal funding, but they are one of the largest recipients. Have you heard of "Medicare and Medicaid"? Yes, that is federal funding, too. Stay with me here!
The Joint Commission (TJC) is an independent, non-profit organization that accredits and certifies more than 22,000 healthcare entities in the United States, and to do so they conduct a multifaceted and very strict inspection of those organizations at a minimum of once every 36 months. If you know anyone who works in healthcare, and you want to scare the bejesus out of them, just say those three words and watch!
Among many items and aspects, their scoring system includes language provision, and I can speak of this with firsthand knowledge because I went through it when I worked at Vanderbilt University Medical Center. The inspectors will literally go to a clinic or hospital department, find an LEP individual, try to communicate with him/her, and then ask the nurses what they should do! This person doesn’t speak English! They will then trace the answers all the way to the patient's chart, because "if it's not documented it did not happen". When they arrive to an interpreter's name in said patient's chart, they will follow it all the way to the Interpreter Department, and they will request that interpreter's employee file to verify credentials, language testing, and training.
This interaction can be determinative of the overall score of the institution. If they find that the organization is not compliant, they may give them a chance to correct the issue, and offer a quick return visit in a certain amount of time. If they are still non-compliant upon their re-inspection, TJC will not certify the hospital, and immediately after that the hospital will lose access to Medicare and Medicaid, (the federal funding part, remember?), or any other federal incentives. Without that, they would likely not be able to continue operating.
I must take a quick stop here to properly credit much of my knowledge about compliance to my time working at Vanderbilt University Medical Center, because as a supervisor, I was one of the people responsible for providing training, and the necessary tools and systems to the outpatient clinics, as well as the inpatient departments. This would ensure not only their preparedness for inspections, but mainly make all these systems perfectly clear and habitual in their daily operations, so everybody in the healthcare team would have a clear idea of what to do when the need for an interpreter presented itself.
Now... you must be thinking that the judicial environment would be ten times better than hospitals, right? After all, they handle legal matters!... Actually, this is not the case. And I am not only talking about our TN Courts; I am talking about the entire country. The difference is that there is not such inspection or accreditation processes in the judicial system. The only change makers in the judicial environment are case laws. All the changes and improvements that have taken place in the judicial system in regard to language provision were either linked to rules and regulations such as the ones I have been talking about, or because of a lawsuit. And I should add, most importantly, thanks to organizations and people committed to uphold the federal mandates and ensure the protection of those rights.
Currently the Tennessee Administrative Office of the Court provides the guidelines for interpreter training and credentialing, as well as payment for court interpreters, in accordance with Rule 42 of the TN Supreme Court. In a nutshell, payment for interpreters is provided for all in-court proceedings, civil and criminal, regardless of indigence status, making the service free of charge to LEP individuals. In the case of indigent defense, interpreters are also provided free of charge for out-of-court meetings during the pre-trial period. (*Please read Rule 42 for details). Anyone wishing to become a credentialed court interpreter can find all the program's details at the AOC's Programs webpage under the "Become an Interpreter" tab.
I must stop here and see if you are still with me… and awake! But I can't leave without making one final point. Many people, in or outside the judicial environment, may find it annoying or complicated having to use an interpreter, and even more so, dealing with finding a qualified one, because… how much easier it is to just grab a friend, or the kids, or even the bilingual cop we just hired! But making the effort to seek the help of professional court interpreters you are not only protecting the LEP individual's rights, you are protecting yourself, and the integrity of your work!
Interpreting a foreign language requires a lot more than just being bilingual, and when what's at stake is the life of a patient, or the freedom of a person, we should always put ourselves those situations, in foreign country not knowing the language, before making the decision to use an untrained person to serve as interpreter.
Do you have any idea how many court cases are jeopardized because of the lack of use of a trained interpreter? Do you know how many innocent people may be in prison for that same reason? Do you have any idea how impactful your words may be when you make uninformed commentaries, or statements from powerful positions?
I learned long ago to not complain unless I have a potential solution for the issues that bother me. So that is what brought me here, the need to share what little I know. Perhaps someone reading this will make small changes that can have a great impact on someone else's life. Or who knows… maybe help bring about big changes like the ones introduced throughout the past 50 years!