Court Interpreters and the Political Economy of Bail in Three Arraignment Courts

• Author: Jennifer Peirce,Diba Rouzbahani,Andres F. Rengifo
• DOI: http://doi.org/10.1111/lapo.12151
• Date: 01 July 2020
• Published date: 01 July 2020

Court Interpreters and the Political Economy of Bail

in Three Arraignment Courts

ANDRES F. RENGIFO, DIBA ROUZBAHANI and JENNIFER PEIRCE

Criminal courts in the United States engage defendants with Limited English Proficiency on a

regular basis. However, we know little about how court-appointed interpreters shape case-level

routines and dispositions, nor how these interpreters navigate their immediate courtroom envi-

ronment. We draw on observations of bail hearings (N = 647) conducted in 2015–16 in three

arraignment courts in New York and New Jersey to map the practice and consequences of lan-

guage interpretation. More specifically, we examine whether the use of an interpreter relates to

indicators of judicial treatment and case disposition by bail type/amount, and explore more

broadly how the presence of interpreters shapes the casework of other courtroom actors.

Results from multivariate regression models indicate that cases with interpreters are associated

with a more limited judicial review, a lower likelihood of unconditional release, and higher cash

bonds. We discuss these findings in terms of evolving mechanisms of social control and the

criminalization of disadvantaged populations.

The provision of a court interpreter for Limited English Proficiency (LEP)

1

persons is a

key component of fairness and due-process protections in the US (28 U.S.C. §1827;

American Bar Association 2012). However, much like the protagonist of Kafka’s The

Trial, LEP court users with unmet language needs are often not only “virtually absent

from their own proceedings” (Davis et al. 2004, 3) but also face “ill-defined” parameters

to enable their participation (Ahmad 2006, 1018). Language barriers can undermine

guarantees such as the right to a trial by jury or a probable-cause hearing (Cole and

Maslow-Armand 1997; U.S. Department of Justice 2016) or weaken a defendant’s or

witness’s perceived credibility (Hale 2014; Aliverti and Seoighe 2017). The unmet needs

of LEP persons also carry broader consequences: if the court does not provide inter-

preters in a timely fashion, or not at all, cases can be delayed and decisions can be

vacated. For example, service gaps in language interpretation can lead to legal chal-

lenges or protracted proceedings. Critically, barriers to language access may deter cer-

tain communities from mobilizing law or from cooperating with law enforcement

(Abrego 2011; Rengifo and McCallin 2017).

The growing diversity of the US population has deepened the significance of these

issues. The number of LEP persons has doubled since 1980 and is now about 9 percent

of the total population, and as much as 20 percent in states such as California or Texas

We would like to thank Luis Torres, Maureen Darby, Caroline Vargas, Morgan Pater, Juan Ghiorzo, Ana

Clara Piechestein, and Daniel Kay for their research and fieldwork support in the completion of this project.

Address correspondence to: Andres F. Rengifo, Rutgers University—Newark, School of Criminal Justice,

123 Washington St., Ste. 554, Newark, NJ, USA 07102. Email: arengifo@rutgers.edu.

LAW & POLICY, Vol. 42, No. 3, July 2020

©2020 The Authors

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

doi: 10.1111/lapo.12151

ISSN 0265-8240

(Davis et al. 2004; National Center for State Courts 2015). Interpreter events in federal

courts increased from 66,000 in 1990 to 357,000 in 2010 (a change of over 400 percent),

with a slight drop in recent years (Administrative Office of the U.S Courts 2017).

2

Interpretation issues are increasingly prominent for immigration hearings (Ryo 2016),

client–counsel interactions (Ahmad 2006), and small-claims courts (Argenmeyer 2015).

Language assistance in these and other legal settings is often delivered unevenly, with

little standardized training or litigation (Berk-Seligson 1990; Davis et al. 2004;

Chang 2008; Aliverti and Seoighe 2017; Carstensen and Dahlberg 2017).

Perhaps more critically, research on criminal courts and case-processing routines has

not examined the impact of language difference and interpretation on defendant out-

comes or courtroom interactions. Instead, a number of specialized studies have focused

on the technical challenges of interpretation or on their influence on the credibility of

LEP sources (Hale 2004). More sociological approaches have examined courtroom

exchanges involving principal actors and support staff, although these institutional con-

texts are rarely linked to specific casework involving LEP defendants or other court

users (Feeley 1979; Bogoch 1999; Castellano 2011; Roth 2017; Travers 2017). In fact,

LEP status or interpreter mediation has been largely absent from the otherwise extensive

literature on legal and extralegal factors associated with decisions such as bail or sen-

tencing. We argue that research and theory have yet to bridge language difference and

courtroom dynamics, particularly in connection with new actors (interpreters, risk actu-

aries), settings (criminal vs. civil courts, trials vs. arraignments), and case outcomes

(“actual” convictions and other decisions vs. mock-juror perceptions or appellate

review). This is critical given that we know little about how prevailing discourses about

process and punishment shape court interpretation, particularly in a context marked by

mass incarceration and pervasive racial and ethnic disparities (Western 2006;

Abrego 2011; Hannah-Moffat and Maurutto 2012; Gonzalez Van Cleve 2016).

We address these issues by documenting the institutional context, role, and impact of

interpreters in three county-based arraignment courts in New York (the Bronx) and

New Jersey (Hudson, Union). We draw on systematic observations of bail hearings

3

(N

= 647) to describe how cases involving a court-appointed interpreter differ from other

cases across two dimensions of decision-making and disposition. These dimensions are

the presiding judge’s treatment of defendants and the nature of the pretrial decision

(i.e., release on the defendant’s own recognizance [ROR] or cash bail, and cash bail

amount). To contextualize this assessment, we first show qualitatively how interpreters

negotiate their professional role in the courtroom, and then we model how judicial treat-

ment and decisions differ across case and defendant characteristics, including whether

an interpreter intervened on record. We focus on bail hearings as a way to document a

part of the “front porch” of the justice system (Roth 2017) that remains rather under-

studied despite its uneven application and impact on defendants (Spohn 2008; Hannah-

Moffat and Maurutto 2012; Wooldredge et al. 2015; Travers 2017).

This work makes two contributions to the literature. First, we broaden perspectives

on the deployment of criminal sanctions by focusing simultaneously on bail and judicial

treatment, as well as by mapping exchanges among principal courtroom actors such as

judges and attorneys and other actors in the periphery of the conventional court,

namely, interpreters and LEP court users (Flemming, Nardulli, and Eisenstein 1992;

Tyler and Huo 2002; Ulmer and Johnson 2003). Second, we supplement studies that

focus on court interpreters, which are largely qualitative, by combining the statistical

modeling of legal and extralegal correlates of judicial decisions with a thick description

of the “micropolitics” of the courtroom (Bogoch 1999; Travers 2017). In particular, we

focus on language interpretation as a mechanism that shapes both the practice and the

©2020 The Authors

Law & Policy ©2020 University of Denver and Wiley Periodicals LLC.

COURT INTERPRETERS IN THREE ARRAIGNMENT COURTS 237