The Hard Work of Ensuring Access to Justice for Immigrants

At its annual meeting on January 25, 2012, the Maine State Bar Association sponsored an inter-disciplinary panel on “Access to Justice” for two of the largest growing populations in Maine and nationwide: the foreign-born and the elderly.  Donald Kerwin, CMS’s Executive Director, and Susan Roach, Executive Director of Maine’s Immigrant Legal Advocacy Project (ILAP), a charitable legal services program, spoke on challenges facing these immigrants.

There are 73 million foreign-born US residents and their children, and nearly 25 million with limited English proficiency (LEP). As of 2000, US residents spoke 380 languages and language families. Compared to the nation as a whole, Maine’s foreign-born population is proportionally smaller, older, more established, better earning, and with higher rates of naturalized citizens, women, North Americans and Europeans.  It is also diverse.  In 2010, ILAP served people from 98 countries, with Somalis, Iraqis and Sudanese composing the top three national groups.  However, unlike demographically similar states (Alabama and South Carolina) whose foreign-born populations remain relatively modest but which have experienced high rates of growth, Maine has not adopted draconian immigration enforcement laws and strategies. This is important as immigration enforcement can influence the ability of immigrants to access the criminal justice system.

According to the American Bar Association’s (ABA’s) Rule of Law Index, access to justice requires “affordable, effective, impartial, and culturally competent” legal systems. Legal representation is fundamental to access to justice for immigrants.  Yet there is a significant shortage of legal services for low-income immigrants.  A recent survey by Geoffrey Heeren found that nearly 40% of Legal Services Corporation (LSC) grantees did not handle any immigration cases, and only two LSC grantees had large immigration practices.  Nationwide, immigration cases represent less than 1% of all LSC cases. A 2004 survey for the Lawyers’ Trust Fund of Illinois found that low-income immigrants had more legal needs, but were less likely to secure representation than others. Nearly 40% of surveyed immigrant households had an unaddressed legal need, compared to 34% of all households.  A 1996 survey by Robert Bach of 2,500 low-income immigrant households in five cities concluded that immigrants “were much more likely to experience social problems than their impoverished counterparts, and were significantly less likely to get help for those problems.”  64% of the households surveyed experienced a legal problem in the prior year, with one-half of these households experiencing three or more problems. Of the households with a legal need, only 25.5% had received legal help.

The situation is not significantly, if at all better for persons in removal proceedings. The US Department of Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR) reports that no more than 43%  of persons in removal (deportation) proceedings in any year between FY 2006 and FY 2010 enjoyed legal counsel. Yet legal representation is the single best indicator of whether a person will be able to obtain political asylum or relief from removal.

While the foreign-born need legal counsel, they are imprisoned at lower rates than natives.  A 2007 study by Kristen Butcher and Anne Piehl looked at Census data from 1980, 1990 and 2000 on institutionalization (the study’s proxy for incarceration) of men from 18-40 years old.  It concluded that the foreign-born, despite characteristics that are otherwise correlated to incarceration, were one-fifth as likely to be institutionalized as natives in 2000. The authors attributed this finding to self-selection and deterrence: those who decide to migrate have a lower propensity to criminality (they come to work) and seem to be more deterred by stricter criminal laws. The authors did not find meaningful differences in institutionalization rates between the foreign-born who were not subject to deportation (because they had naturalized) and those who could still be deported. Based on this finding, they concluded that the threat of deportation did not appear to be the reason for lower prison rates among this population.  Other studies have focused on federal crimes, finding higher rates of immigrant criminality. Federal prisoners represent less than 10% of all US prisoners, and immigration-related prosecutions – primarily for illegal entries and illegal re-entries – constitute more than one-half of all federal prosecutions.

Another “access to justice” challenge involves language access and the paucity of certified interpreters for court proceedings and related matters. Under Title VI of the Civil Rights Act of 1964, state and county courts are required — as a condition of receipt of federal funding — to provide interpreters to LEP persons in all civil and criminal cases. Executive Order 13166 (2000) requires federal agencies and recipients of federal funding to “ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin.” DOJ guidance in 2002 requires that courts systems provide meaningful access to LEP persons. However, a 35-state review by the Brennan Center for Justice in 2009 found that 46% of state courts fail to provide interpreters in all cases; 80% fail to guarantee courts will pay for interpreters; and 37% fail to use credentialed interpreters.

The need for qualified interpreters is crucial to access to justice. Yet courts face persistent shortages in securing credentialed interpreters, particularly in non-traditional languages.  In 2008, the National Association of Judiciary Interpreters and Translators reported that there were roughly 3,000 certified interpreters nationwide, but only 500 in languages other than Spanish. Pass rates for certification tests – through the 43-state Consortium for State Court Interpreter Services – have been low, particularly for non-Spanish interpreters.  The Consortium has had an oral exam in the Somali language for roughly 8 years, but the test has only been administered 35 times and only one candidate has passed it.

The state of Maine now provides interpreters at all court events, in all civil proceedings, at its own expense, in multiple languages. It uses the Language Line telephone service when live interpreters are not available. It has posted cards in six languages notifying LEP persons of the availability of language assistance and encouraging them to bring their language needs to court staff.  It has trained its judges and court staff, and provided bench books to judges. It recently named an Access to Justice “coordinator” to expand and oversee this work. Still, it struggles to meet the demand for interpretation services. States are exploring multiple options for addressing this challenge. Some states – like New York and Florida – concentrate interpreters in certain courts, and make them available via video to other courts. Several states could also pool interpreter resources and make them available via video. Other state courts are starting to partner with hospitals, businesses and other institutions in their states that also need interpreters. Alaska has a Language Interpreter Center and shares interpreter resources across industries and businesses, both government and non-governmental.  New Mexico has a New Mexico Center for Language Access which trains bilingual individuals to interpret in courts, medical, and other environments.  Other courts are aggressively recruiting and training would-be interpreters.  In the interim, they are employing interpreters that have scored at certain (non-passing) levels on certification tests.  The courts might also explore partnerships with the federal Office of Refugee Resettlement, which funds 800 lines, staffed by multi-lingual staff, for asylees and other refugee-like populations.

Professor Georgia Anetzberger, Ph.D., a national expert and Adjunct Assistant Professor in the School of Medicine at Case Western Reserve University, and Jaye Martin, Executive Director of Legal Services for the Elderly in Maine, also highlighted the challenges and problems related to a rapidly aging population in states like Maine and the US overall. The Honorable Ellen Gorman of the Maine Supreme Judicial Court, who moderated the session, made the point that immigrants might be seen as part of the solution to these challenges, rather than a problem.