LANGUAGE BARRIERS AND CULTURAL INCOMPETENCY IN THE CRIMINAL LEGAL SYSTEM: THE PREJUDICIAL IMPACTS ON LEP CRIMINAL DEFENDANTS.

• Author: Moya, Sarah
• Position: Limited English proficient crimininal defendants legal issues

Introduction 402 I. Legal and Socio-Political Context 404 II. The Prejudicial Impacts 407 A. Arrests and Policing 408 B. Pretrial Proceedings and Plea Bargaining 413 C. Jury Selection and Trial Proceedings 419 D. Sentencing and Post-Conviction Relief 424 III. Proposed Solutions 427 A. Improving Communications in Criminal Arrests 428 B. Raising Standards for Certified Court Interpreters 429 C. Clarifying the Role of Defenders 430 D. Preventing the Implementation of White-Washed Juries 431 E. Enhancing Mitigation Techniques and Post-Conviction Relief 432 Conclusion 433 INTRODUCTION

The criminal legal system is a maze. People who find themselves in this maze are frequently cornered by its classist and racist hedges and dead ends. While much of the system is plagued with elitist legalese that disadvantages lay people, this complexity is compounded when an individual cannot understand its language. From arrest to sentencing, limited English proficient (LEP) (1) defendants are tasked not only with finding their way through the maze, but are essentially also doing so with a blindfold.

Language and cultural barriers affect every element of the criminal legal process. These challenges are even more pronounced when dealing with minority cultures and underrepresented languages. While the use of translation services and interpreters attempt to ameliorate the challenges, the salves are insufficient to address these inequities.

LEP criminal defendants are often left behind as the criminal legal system churns through its docket. According to a 2014 study conducted by Legal Services NYC, 74% of New York City lawyers reported experiencing interpreter-related adjournments and delays while representing their LEP clients. (2) Even when interpreters are made available, dire mistakes are made when carrying out representation due to errors in interpretation: for example, in 2016, a Spanish-speaking defendant in Virginia thought he was he was being accused of rape when his interpreter used the term "violacion" to describe a criminal violation. (3) These missteps go beyond mere miscommunication and constitute constitutional violations of the protections guaranteed by the Fifth Amendment, Miranda v. Arizona, (4) Brady v. United States, (5) and Padilla v. Kentucky. (6)

LEP criminal defendants are some of the criminal legal system's most vulnerable victims. (7) As our society becomes increasingly multicultural and multilingual, (8) and as the Latine (9) community becomes the dominant "minority" group in the United States, (10) it is imperative that the criminal legal system improves its solutions to meet the needs of our diverse U.S. communities.

While legal scholars, such as Jasmine B. Gonzales Rose, have articulated the ramifications of poor interpretation and linguistic and racial bias in particular parts of the trial process, few scholars have surveyed the compounding due process implications which, in each step of the criminal process, distort and disrupt the rights of LEP criminal defendants. This Note provides an exploration of common issues that arise for LEP criminal defendants throughout the criminal process, while also providing guidance to stakeholders in the criminal legal system who might be able to intervene and improve upon these problematic practices.

This Note outlines the obstacles that LEP defendants encounter from the point of criminal arrest to sentencing and post-conviction proceedings. Part I will introduce the appropriate legal context for analyzing these issues, summarizing the holdings of Miranda, Brady, and Padilla, and highlighting the gravity of the due process implications for LEP criminal defendants--particularly BIPOC" LEP defendants. Part II will discuss how these issues manifest in various stages of criminal procedure: first, how law enforcement--citing the New York City Police Department as one example--fails to provide sufficient interpretation and circumvents the standards outlined in Miranda under the guise of efficiency. Next, the Part outlines the role of interpreters in arraignment and pretrial proceedings, focusing on the consequences of poor or biased interpretation, which can manifest in illegitimate plea bargains. This Part will also discuss how U.S. juries deny due process to minority LEP defendants and describe cultural mitigation strategies and obstacles to post-conviction relief for language-based claims. Finally, Part III proposes solutions to mitigate the prejudicial consequences of the U.S. criminal system on LEP defendants.

1. LEGAL AND SOCIO-POLITICAL CONTEXT

   The criminal legal system, as a matter of constitutional law, is structured to protect individuals who are arrested from unreasonable government intervention and intrusion. (12) These staunch limitations on the power of the police and the government extend to the criminal process, wherein the right to procedural and substantive due process is guaranteed to any individual facing criminal prosecution. (13) While the United States has fallen short on this promise in many areas, it has especially fallen short for LEP criminal defendants, for whom the system often fails to provide even the basic rights under Miranda, Brady, and Padilla. To understand the extent to which these rights have been circumvented, it is crucial to understand the U.S. Supreme Court's foundational holdings.

   Miranda v. Arizona established the right for a person facing a criminal arrest to be apprised of their Fifth Amendment right against self-incrimination once they have been taken into custody. (14) These rights are commonly known as "Miranda warnings": an arresting officer must inform the individual of their right to remain silent, their right to have an attorney present, even if they cannot afford it, and that any statement they make may be used against them in the court of law. (15) A heavily litigated issue is what constitutes "custody." The Supreme Court has defined "custodial interrogation" as any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (16) In such a custodial interrogation, the right to remain silent must be provided to an individual in "clear and unequivocal terms." (17) If a defendant proceeds with their interrogation without an attorney and provides a statement, the prosecution must meet a "heavy burden" to demonstrate that the defendant knowingly and voluntarily waived their right to remain silent and their right to counsel. (18)

   The promise of Brady v. United States carries similar significance but relates to the defendant's decision to plead guilty. Brady requires that a defendant plead guilty knowingly, intelligently, and voluntarily. (19) In other words, the defendant's guilty plea must be "the voluntary expression of [the defendant's] own choice." (20) This is not only because of the potential liberty interests at stake but also because a defendant's decision to plead guilty waives their constitutional right to a jury trial. (21) Importantly, this does not mean that the defendant cannot be subject to coercion or induced to plead guilty due to fear of the penalty or hope of leniency. (22)

   Another vital consideration when considering a guilty plea, especially for LEP criminal defendants, is the defendant's immigration status. In Padilla v. Kentucky, the Court held that a counselor's failure to advise a noncitizen criminal defendant of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel under Strickland v. Washington? (23 )This means that a defense attorney who fails to offer adequate immigration advice to noncitizen defendants falls below the objective standard of reasonableness in providing competent representation. (24) This obligation holds defenders accountable for misleading or incorrect affirmative advice, but their culpability can be limited depending on how complicated or unclear the consequences may be. (25)

   In addition to this legal context, there is an undeniable socio-political context which informs a LEP defendant's experience in the criminal legal system. To put it plainly, the criminal legal system is plagued with bias. (26) Legal scholars such as Michelle Alexander and Paul Butler, as well as prominent activists such as Angela Y. Davis and Mariame Kaba, have dedicated their professional lives to exposing the criminal legal system for what it is: a system of oppression designed to disenfranchise poor people of color. (27) Policing and the carceral state have roots in the American slave trade and have since evolved to mask their nefarious purpose of maintaining white supremacy. (28) These efforts expand to the regulation and oppression of immigrant communities; currently, the United States exceeds all other nations in how many of its citizens, asylum seekers, and undocumented immigrants are under some form of criminal supervision, and the number of Black and Latine detainees exceeds the population of some African, Eastern European, and Caribbean countries. (29) The American Bar Association has written that "[t]he criminal [legal] system's pervasive problems with racism start before the first contact and continue through pleas, conviction, incarceration, release, and beyond." (30)

   Compounding this racial and ethnic bias, LEP criminal defendants may face another distinct form of discrimination: linguicism. Linguicism, or linguistic discrimination, is a term utilized by Jasmine B. Gonzales Rose and is broadly defined as "ideologies, structures and practice which are used to legitimate, effectuate, regulate and reproduce an unequal division of power and resources (both material and immaterial) between groups which are defined on the basis of language." (31) In short, linguicism occurs when an individual is discriminated against because of the language they speak or appear to speak. While cases like Batson v. Kentucky bar purposeful discrimination in the...