Lost in interpretation: the problem of plea bargains and court interpretation for non-English-speaking defendants.

• Author: Chang, Annabel R.

INTRODUCTION

On March 26, 1991, Mr. Irving Chin pled guilty to charges arising from an alleged illegal gambling operation. (1) Yet, Chin pled guilty without realizing that he would be "regarded as a criminal." (2) His co-defendant, Mr. Chi Chak Leung, similarly pled guilty to related charges despite consistently asserting that his only role in the gambling operation was cashing chips. (3) Since neither Chin nor Leung spoke English and their court interpreters failed to convey the serious consequences of a guilty plea, both men unwittingly waived away fundamental constitutional rights in a language they did not understand. (4) Consequently, Chin and Leung filed a motion to withdraw their guilty pleas due to cultural and language barriers. (5) Upon evaluating both men's motions to withdraw their pleas, a United States district court found that the two defendants faced "linguistic and cultural difficulties" during the plea bargaining process. (6) When the court evaluated Leung's responses during the plea colloquy, it determined that Leung "lack[ed] ... an adequate understanding ... of the nature of the charges he was pleading to." (7) In fact, Leung informed the court that he would not have agreed to the plea bargain "even with a gun to his head" if he had understood the consequences of the guilty plea. (8) The court noted that Chin did not even understand particular words involved in the plea bargain. (9) As a result, the Leung court allowed both Leung and Chin to withdraw their guilty pleas. (10)

In another case, Perez-Lastor v. Immigration and Naturalization Service, (11) Mr. Perez-Lastor, a Guatemalan citizen and a Quiche Indian, was denied asylum by the Bureau of Immigration Affairs (BIA). (12) Although a Quiche interpreter was provided during the immigration proceedings, Perez-Lastor indicated multiple times on the record that "he could barely understand" the BIA judge's questions. (13) Perez-Lastor appealed the BIA decision to deny asylum by arguing that inadequate translation prejudicially affected his asylum hearing. (14) In evaluating Perez-Lastor's appeal, the reviewing court found that Perez-Lastor's answers to the BIA judge had been unresponsive and that the record indicated numerous occasions where Perez-Lastor "expressed difficulty understanding the translation." (15) The Perez-Lastor court noted that "[w]hile repeat questioning produced a superficially responsive answer on some occasions, it is by no means clear that Perez-Lastor actually understood what was asked of him." (16) Also, the Perez-Lastor court found its review further complicated by the fact that the court did not know what Perez-Lastor's "actual testimony" was during the proceedings since "[n]o record of it was preserved." (17) Instead, the court could only evaluate Perez-Lastor's statements from a record revealing "the garble produced by the translator." (18) In deciding to reverse the BIA's ruling, the Perez-Lastor court based its decision on the finding that a "better translation would have made a difference in the outcome of [Perez-Lastor's deportation] hearing." (19)

Both Leung and Perez-Lastor illustrate how non-English-speaking defendants are entirely dependent on the work of court interpreters in American courtrooms. As seen in Leung, court interpreters play a particularly crucial role in the plea bargain context when a non-English speaking defendant is asked to waive substantial constitutional rights. (20) Guilty pleas are now the standard method for resolving criminal controversies. (21) At the very heart of the plea bargain is the defendant's voluntary choice to plead guilty to avoid the expense, inconvenience, and risk of a trial. (22) However, a defendant's lack of English comprehension undermines the public's confidence in the voluntary nature of a guilty plea. (23) Federal courts should be concerned about a possibility that innocent non-English-speaking defendants are pleading guilty simply because they are thrown into a tumult of judicial proceedings in a foreign language. (24) Yet, non-English-speaking defendants plead guilty on a daily basis without adequate safeguards ensuring the voluntariness of their choice. (25) These non-English-speaking defendants face consequences as dire as deportation or imprisonment when they (perhaps unwittingly) waive their constitutional rights away in a cursory plea bargain. (26) With the numbers of non-English-speaking individuals growing rapidly in the United States, (27) the risk that non-English-speaking defendants are being substantially deprived of their rights in a speedy plea bargain is remarkably high.

Due to the increasing numbers of diverse defendants in American courtrooms, this Note argues that new measures should be adopted by the federal courts to address the concern of court interpretation for non-English-speaking defendants in the plea bargain process. (28) Part I of this Note presents the framework of the plea bargaining process, which is a "process by which the prosecution and defense agree to a specific disposition of the criminal charges." (29) All plea bargains must meet a Brady (30) threshold which requires that a guilty plea be voluntary, knowing, and intelligent. (31) Nevertheless, federal courts have no true guarantees that a non-English-speaking defendant's plea agreement satisfies the Brady threshold because the court relies wholly on the work of a court interpreter. (32) Likewise, the non-English-speaking defendant is entirely dependent upon the court interpreter who is his or her primary link to the judicial proceedings. (33) This part lays the foundation for showing the importance of general compliance with the Court Interpreters Act when the non-English-speaking defendant waives constitutional rights through a plea bargain.

Part II explores how the growing diversity of the United States impacts the federal judicial system and how it makes the issue of court interpretation in plea bargaining an area of significant concern. Specifically, increased linguistic and cultural diversity may make the circumstances seen in Leung and Perez-Lastor increasingly frequent. This part discusses the shortage of court interpreters equipped to handle this increasing linguistic diversity and provides background about the role of federal court interpreters under the Court Interpreter's Act.

Part III details the harms resulting from inadequate court interpretation during the plea bargain process. The harms resulting from inadequate courtroom interpretation for non-English-speaking defendants in the plea bargain process are both individualized and institutional. Inadequate courtroom interpretation produces individualized harms for the nonEnglish-speaking defendant because it implicates the individual's

Fourteenth Amendment right to equal protection and Sixth Amendment right to effective assistance of counsel. (34) Similarly, inadequate court interpretation also harms the criminal justice system because it undermines public confidence in the fairness of the plea bargaining process. (35)

Despite the critical nature that court interpretation plays in many criminal federal judicial proceedings, few procedural safeguards exist for ensuring accurate court interpretation even in the plea bargain process where the defendant relinquishes multiple constitutional rights. (36) Part IV proposes multiple solutions that would provide necessary precautions for non-English-speaking defendants who plead guilty. The solutions for inadequate court interpretation in the plea bargain process range from adding personnel, to utilizing technological safeguards, to working with judge-based protections. Implementing these solutions will help to avoid the daunting circumstances that Leung and Chin faced when they bargained away their constitutional rights in both an unfamiliar language and judicial system. (37)

1. THE PLEA BARGAIN PROCESS

   Plea bargaining is the typical way criminal cases are disposed of by the federal judiciary. (38) In 2006, United States courts reported that eighty-seven percent of criminal defendants pled guilty. (39) The effect of plea bargaining on the immigrant and non-English-speaking populations within the federal court system is staggering. In 2006, there were 18,055 defendants charged with immigration offenses, of which 17,328 pled guilty. (40)

   A guilty plea constitutes a waiver of the constitutional rights against compulsory self-incrimination, right to a trial by jury, and the right to confront one's accusers. (41) The standards for all plea bargains are dictated by the Federal Rules of Criminal Procedure, Supreme Court jurisprudence, and the U.S. Constitution. Under Supreme Court jurisprudence, the Brady standard controls the validity of the plea bargain. It requires that a plea bargain is "voluntary ... knowing, intelligent ... [and] done with sufficient awareness of the relevant circumstances and likely consequences." (42)

   The plea bargaining process generally follows a well-established path. After a defendant has been arraigned, the plea bargaining process can begin. (43) At this time, the defense counsel (44) and prosecutor will start discussing the terms of a potential plea agreement. However, the court is prohibited from participating in these discussions. (45) In a plea bargain, the defendant has the option of pleading guilty or pleading nolo contendere. (46) Defendants are motivated to plea bargain because they can potentially plead to a lesser or related offense in exchange for a prosecutor's promise to "not bring" or "move to dismiss" other charges. (47) In exchange, the prosecution may promise to "recommend" or "not ... oppose the defendant's request" for a "particular sentence or sentencing range" or come to an agreement with the defense attorney for a "specific sentence or sentencing range." (48)

   Once the prosecution and the defense have agreed upon a plea bargain, the plea bargain must be "disclose[d] ... in open court." (49) However, the...