Accommodating Limited English Proficiency in Law Enforcement
Schofield, Assistant Attorney General
Michael L. Alston, Director
Office of Justice Programs, Department of Justice
The 911 operator picks up the incoming call, but the distraught person on the line does not speak English.
A police officer, arriving at the scene of a domestic violence call, finds no one who speaks English well enough to explain what happened. The only person who has passable English skills is the 12-year-old son of the alleged victim.
A detective, investigating the burglary of a corner grocery, finds that the only witnesses to the crime are neighbors who are recent immigrants. Most have trouble expressing themselves in English.
These scenarios, in which law enforcement personnel serve people with limited English ability, are common in communities throughout the country. They illustrate just some of the many encounters that law enforcement professionals have on a daily basis with people who have limited English skills. Even populations outside of major metropolitan areas are growing more and more diverse; many have sizable communities whose primary language is not English. In trying to serve non-English speaking populations as well as possible, how do law enforcement professionals think through all of the related issues?
Department of Justice Guidance
In June 2002, the U.S. Department of Justice (DOJ) published a guidance document1 for recipients of financial assistance that helps law enforcement agencies develop policies and procedures for dealing with non-English speaking individuals. The purpose of the Justice Department’s publication is to help agencies comply with the requirements of Title VI of the Civil Rights Act of 1964 and other related funding statutes. Title VI states that recipients of federal aid, which many law enforcement agencies in the country receive in one form or other, cannot discriminate on the basis of race, color, or national origin in the services or benefits that they provide. Discrimination on the basis of national origin includes discrimination on the basis of language ability. The guidance document uses the term “limited English proficiency” or “LEP” in referring to individuals whose first language is not English and who have a limited ability to read, write, speak, or understand English.
To comply with Title VI, the DOJ guidance advises recipients to take “reasonable steps” to provide LEP individuals with “meaningful access” to programs or activities “free of charge.” The clearest part of this instruction is “free of charge.” LEP individuals do not have equitable access to services or benefits if they are charged a fee for language assistance services.
So, under no circumstances may law enforcement agencies pass on the charge for an interpreter or translator to a LEP person. “Reasonable steps” requires explanation.
In evaluating whether a law enforcement agency is taking reasonable steps to provide language assistance services to LEP persons, the DOJ guidance uses a four-factor analysis: (1) the number or proportion of LEP persons in the service population; (2) the frequency of contacts with LEP individuals; (3) the nature and importance of the program, activity, or service provided; and (4) the available resources and costs.
(1) The Number or Proportion of LEP Persons Served:
Often the first step that law enforcement agencies take to get a more accurate picture of the demographics of their LEP service populations is to access 2000 Census data. The U.S. Census Bureau has made a great deal of information pertaining to the languages spoken in the United States and the relative English proficiency of U.S. residents available on its American Factfinder website, http://factfinder.census.gov. The Census Bureau provides detailed information on each language group for the nation as a whole and for each state. For smaller jurisdictions, however, the Census Bureau has tabulated language information into the following broad categories: Spanish, Other Indo-European Languages, Asian and Pacific Islander Languages, and All Other Languages. The information for Spanish is readily available, whereas the data is less useful for identifying the other language groups in particular localities. The Census Bureau is trying to provide more detailed language information for jurisdictions below the state level. The Census Bureau also classifies the English language abilities of non-native speakers into the following categories: those who speak English “very well,” “well,” “not well,” and “not at all.” In addition, the Census Bureau provides information on the English language skills for speakers of particular non-English language groups. For example, data shows that of the 1,422,316 Spanish-speakers in Los Angeles, 60.2 percent speak English less than “very well.”
In many instances, a more accurate source of information on the LEP population in any given community is the school system. Schools are required to keep track of the LEP students who present themselves for an education. In the absence of any other information, the school data may serve as a proxy for identifying the languages spoken and the size of the language groups in any given service community. Several law enforcement agencies have been able to work with local school systems to identify the demographics of the LEP communities they serve.
(2) Frequency of Contacts:
One method for law enforcement agencies to assess the language groups in their communities, as well as the size of each group, is to implement procedures for gathering data on contacts with LEP persons. One widely used way to track contacts with LEP individuals is private interpreter services that law enforcement agencies retain to provide language services, either in responding to emergency and non-emergency telephone calls or in dealing with LEP persons in the field. Many private vendors provide monthly and yearly reports that show how many times language services were needed, the languages requested, and the circumstances surrounding the request for help.
Some law enforcement agencies have taken other measures to gather information on contacts with their LEP populations. Front desk staff might keep a log of the number of LEP persons who walk in to request services and a record of the language assistance services the agency provided. Some agencies have developed protocols that require officers in the field to record and track encounters with LEP persons. By establishing procedures for collecting information on contacts with LEP individuals, law enforcement agencies know more precisely the frequency with which they encounter requests for language assistance.
(3) Nature or Importance of the Service:
The “reasonableness” standard in taking steps to provide language services entails making distinctions between what are the most important services that law enforcement agencies provide and those of lesser significance. When are language assistance services absolutely essential? When would they be nice but not necessary? In the context of law enforcement, most people would agree that language assistance services are a high priority whenever a LEP person receives instructions on matters affecting rights or responsibilities, such as Miranda warnings, or whenever a LEP person needs assistance related to personal safety or medical care. According to the DOJ guidance, examples of when language assistance may be less a priority are in giving a tour of a courthouse or conducting a bicycle safety program.
(4) Resources or Costs:
Translation and interpreter services can be expensive. In assessing their responsibility to provide language assistance services, law enforcement agencies may take into account the cost. In the context of providing language services, however, law enforcement agencies have to think of resources as much broader than their operational budgets. Houses of worship, neighborhood associations, charitable organizations, and educational institutions are potential resources to provide voluntary language assistance services. Before dismissing LEP services as too expensive, law enforcement agencies must assess other cost-free language assistance resources available in their communities.
Language assistance services are an allowable program cost. When applying for a grant from DOJ, agencies are encouraged to include in the proposed budget language assistance expenses.
Language Assistance Services
Language assistance services are provided orally or in writing. When providing interpretation services, law enforcement agencies need to ensure the competency of the interpreter. Many law enforcement agencies have bilingual staff that can handle many situations involving LEP persons. However, few law enforcement agencies have in place quality control measures that guarantee that staff members or other interpreters are reliable. The DOJ guidance does not require law enforcement agencies to use only certified interpreters, but it reminds administrators that they should have some way to verify the linguistic skills of an interpreter. For example, a panel of native speakers might interview and vouch for the language skills of bilingual staff. Too often, law enforcement agencies rely on self-identified interpreters without checking competency. Moreover, the ability to speak a foreign language is not the same skill as rendering a foreign language into English or the reverse.
The DOJ guidance cautions against using LEP family members, especially children. It also cautions against using friends or bystanders as interpreters because law enforcement officers may have little basis for relying on their competency. In addition, the use of friends or family members can compromise reliable communication. Victims of crime might be reluctant to disclose important but embarrassing information to a family member or friend. This problem can be especially acute in gathering information on domestic violence calls. Moreover, family members and friends also might have an undisclosed conflict of interest, wanting to protect themselves or the perpetrator of a crime.
When translating documents into other languages, law enforcement agencies first need to take an inventory of all the written materials they publish, including standard warnings, complaint and witness forms, community newsletters, and public safety brochures. Administrators should then identify what documents are “vital.” According to the DOJ guidance, “vital” written materials can include consent and complaint forms, intake forms, written notices regarding rights or benefits, notices of disciplinary action, notice of free language assistance, prison rule books, competency tests, or applications to programs or activities to receive services. The DOJ guidance states that in determining whether a document is “vital” can “depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner.”
Once law enforcement agencies determine which documents are “vital,” they must determine into which languages the materials should be translated. Large metropolitan police departments might have to translate materials into dozens of languages. The DOJ guidance provides help by establishing a so-called “Safe Harbor” provision, a standard that assures law enforcement agencies that certain actions would be considered strong evidence of compliance with the obligation to provide written translations. The DOJ guidance states that a law enforcement agency may meet the “Safe Harbor” provision by translating vital documents into the language of each LEP language group that makes up five percent or 1,000, whichever is less, of its service population. Translations of non-vital documents can be provided orally as needed. If fewer than 50 persons in the language group meet the five percent threshold, the law enforcement agency might not need to translate the vital documents, but it should provide written notice to the LEP group in its primary language of the right to receive oral interpretation of the written materials free of charge.
Developing an Effective Language Assistance Plan
After using the four-factor analysis to evaluate the language assistance services that a law enforcement agency provides, administrators should develop a comprehensive written language assistance plan. According to the DOJ guidance, a language assistance plan should contain these five elements: (1) a method for identifying the LEP individuals in the service population who need language assistance; (2) information about the language assistance measures the law enforcement agency plans to provide; (3) training for staff; (4) outreach efforts to notify the LEP community of the language services available; and (5) a means for monitoring and updating the plan.
(1) Identifying LEP Individuals:
As noted previously in the discussion pertaining to the four-factor analysis, law enforcement agencies should establish methods for identifying the particular language groups in their service populations and their sizes. In addition to using data from the 2000 Census and local school systems, some agencies have relied on information gathered by state, municipal, or county governments. Others also have used the Geographical Information Systems (GIS) technology, combined with census tract data, to provide detailed reports on the language groups in each of many police precincts or patrol areas.
(2) Language Assistance Measures:
A language assistance plan should describe the translation and interpretation services the law enforcement agency plans to provide. These services can include bilingual staff, contract interpreters and translators, private vendors accessible via telephone, or referrals to the language services provided by other governmental agencies or non-profit organizations.
(3) Staff Training:
A language assistance plan is only as good as the staff that implements it. Law enforcement administrators should consider whether all employees in public contact positions know how best to serve a LEP person. Few law enforcement agencies have developed standard operating procedures or general orders that would guide employees in a variety of situations, whether responding to 911 calls, dealing with walk-ins, encountering language barriers in the field, or interviewing crime suspects or witnesses. In all these situations, employees must be aware of the obligation of the agency to provide language services.
(4) Notice to the LEP Community:
If LEP individuals are unaware of the language services provided by a law enforcement agency, they could be reluctant to access them. Law enforcement agencies are responsible for making an effort to inform their LEP communities about the language assistance services that they provide. Outreach can include speaking at local congregations or civic groups that have a large LEP constituency, adding an option for language assistance in the appropriate language(s) to the incoming call menu, placing notices in the relevant foreign language(s) in print and broadcast media, or posting signage in the appropriate language(s) in public areas of the law enforcement agency that states that language services are available free of charge.
(5) Monitoring and Updating the Plan:
The DOJ guidance advises law enforcement agencies to monitor and update a language assistance plan on a regular basis. The review process should include noting what elements of the plan are working and whether, based on experience and community feedback, revisions are in order. Law enforcement agencies must be mindful that as the demographics of their communities change over time, the language assistance plan should reflect the changes.
Law enforcement agencies that receive DOJ funding can, as a proactive measure, request technical assistance from the Department to develop an effective language assistance plan. Many resources are available online at www.lep.gov. Included on the website are the DOJ guidance, diagnostic tools, and a collection of practical “Tips and Tools.” Another resource is a CD-ROM produced by DOJ’s National Institute of Justice, titled “Espanol for Law Enforcement: An Interactive Training Tool.” The CD-ROM is available through the National Criminal Justice Reference Service (NCJRS) and can be ordered by telephone at (800) 851-3420 or via NCJRS’s website at http://puborder.ncjrs.org. DOJ staff can provide technical assistance on request; they can be reached at the Office for Civil Rights, Office of Justice Programs, U.S. Department of Justice, 810 7th Street, NW, Washington, D.C. 20531, telephone: (202) 307-0690.
In addition, the Department of Justice, the Department of Health and Human Services’ Office for Civil Rights, and the Department of Agriculture’s Food and Nutrition Service have jointly produced an effective training DVD with practical illustrations showing the need to provide language assistance services. Law enforcement agencies can obtain a free copy of the DVD through the Office for Civil Rights.
Assistant Attorney General Regina B. Schofield is responsible for providing overall management and oversight of the Office of Justice Programs (OJP), whose mission is to enlarge the nation’s capacity to prevent and control crime, improve the criminal and juvenile justice systems, increase knowledge about crime and related issues, and assist crime victims. She also guides the development of OJP policy and priorities and coordinates the activities of its bureaus and offices.
Michael L. Alston is the Director of the Office of Justice Programs, Office for Civil Rights. The Office for Civil Rights is responsible for ensuring that recipients of financial assistance from the Department of Justice's Office of Justice Programs, Office on Violence Against Women, and Office of Community Oriented Policing Services comply with Title VI of the Civil Rights Act of 1964.
Footnote1 : U.S. Department of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455 (2002).