Since 1988 or so I have assisted primarily Hispanic non-English speaking prisoners with their problems relating to inadequate medical care, disciplinary hearings, racism, etc., within the Washington DOC. The problems were readily apparent: policies and disciplinary reports, forms, memos, etc., were not available in Spanish; qualified interpreters were hardly ever provided for medical appointments, hearings, etc.; court access was non-existent; and more. Over the years I assisted prisoners in filing grievances and similar administrative complaints. In 1990 the DOC enacted DOP Policy 430.050 ordering prison wardens to publish prison rules, policies, etc., in Spanish when they were published only in English. This was never complied with or followed by the DOC. Grievances seeking compliance with the policy were met with evasive responses.
The widespread nature of the problems facing Hispanic prisoners was readily apparent. The DOC also realized it had a problem. In June, 1993, William Mendoza, a DOC employee, completed a report titled Spanish Speaking Inmate Project for the DOC. The study was in response to an increase in the level of incidents involving Hispanic prisoners. Among the problems identified by the DOC were the lack of qualified medical interpreters; rules and policies not translated into Spanish; no audio-visual aids for illiterate Hispanic prisoners, and the few policies that had been translated into Spanish were so riddled with errors they would actually mislead the prisoners.
The report concluded that the DOC had a liability problem with its lack of accommodation for Hispanic prisoners, who constitute some 15% of the Washington DOC's population. It noted Hispanic prisoners tended to be employed in laundry, janitorial and kitchen jobs, i.e. those with the lowest pay, and which involved the handling of hazardous materials. No education or rehabilitative programs are offered in Spanish. Medical translation was virtually nonexistent and was a problem with regards to TB infected prisoners not understanding medication instructions.
It was interesting that Mendoza stated that racism was a problem that aggravated problems in the DOC. "Of more concern is the attitude of the staff towards inmates of color as well as the linguistic differences that are present. These attitudes may have contributed to the various disturbances and incidents that occurred and launched this project. There is a definite need to develop and facilitate cultural awareness. What was even more interesting were the comments of administrative and support staff who had little contact with the inmate population. Comments like 'I'm getting tired of dealing with these wetbacks' or 'I wish we had an institution full of blacks because they don't run, but they don't work either,' or 'If we provide for one group then we have to give the same to the blacks and Indians' were uncalled for and question the treatment of the inmates of color."
Deciding that this problem had gone on way too long Ed Mead, PLN's former co-editor, and I drafted a suit on behalf of eight non English speaking Hispanic prisoners at the Washington State Reformatory, [see, PLN, April, 1994] and filed it in federal court. Despite having plaintiffs who spoke no English the court refused to appoint counsel. Letters to the Mexican American Legal Defense Fund and the Hispanic Bar Association seeking counsel went unanswered. Fortunately, John Midgley of Evergreen Legal Services agreed to take the case. The DOC soon entered into settlement negotiations after an amended complaint was filed which significantly expanded the original suit and added plaintiffs at other prisons.
The settlement agreement represents a significant advance for Hispanic prisoners in Washington state, if the DOC complies with it. It is important to note that the suit was not a class action and this is not a consent decree. When Ed and I initially filed the suit we sought class certification. Because this has not been settled with a consent decree, class action status was not pursued as not to bind all prisoners with a difficult to enforcement settlement. The settlement is an agreement which can be enforced in state court as a contract which is less desirable than a consent decree, but no other prisoners are bound by the agreement and they can still sue for money damages should the DOC not comply. Likewise, the suit can and will be litigated if the plaintiffs don't agree that the DOC has met its obligations under the agreement. The suit is stayed for 18 months until a decision is made as to whether the agreement was complied with or not. Plaintiff's counsel will evaluate whether the DOC is complying with its obligations under the agreement this includes receiving copies of all written materials, interviewing DOC staff responsible for implementing the program and entering DOC facilities to review the provision of oral translation services.
Under the agreement the DOC agrees to provide within 18 months, (June 17, 1996), without charge, medical information dealing with sexually transmitted diseases, TB, hepatitis and other illness. Within 12 months, (January 17, 1996), the DOC must provide Spanish language versions of WAC policies on: Prison discipline, ad-seg/IMU, inmate personal property, inmate mail, medical care/health care, visitation and transfer of citizens of foreign countries. In the same 12 month period the DOC must translate policies on discipline; classification; grievance procedure; ad-seg; legal access; deportation proceedings; earned release time; clergy communication; religious freedom; prisoner searches; legal financial obligations; visits; extended family visits; medical, dental and mental health services; telephone use; marriages; inmate handbooks; unit rules; fire evacuation and safety rules; medical consent forms; mail, interpreter requests; commissary ordering procedures; fund transfers; transfer inquiry; disposal of property; sex offender registration; detainer notice; drug testing; property and laundry; translation services and release review criteria.
All DOC law libraries will be required to have specified legal materials on immigration and English-Spanish legal dictionaries. Libraries will provide Spanish language recreational and reference reading materials.
All DOC facilities will have at least one full time employee who is a qualified interpreter, prisons with more than 750 prisoners will have at least two. If the DOC cannot recruit qualified staff, telephone translation services will be provided in the meantime until the staff are hired. Phone companies provide translation services and all DOC facilities will be authorized to utilize them.
Prisoners will be entitled to a Spanish translation of all disciplinary reports and any other documents related to a disciplinary, ad-seg, grievance or classification hearing or meeting conducted within the prison. This includes translation of all appeals and hearing officer decisions. The specific items for translation are itemized in the agreement. Translation services, either in person or via telephone translators, must be provided for all medical, dental and mental health programs, including labels on prescriptions. For medical emergencies or incidents occurring after regular work hours telephone translation will be used.
At the prisoner's request the DOC will provide translation of crucial legal documents, including subpoenas, complaints, summons, notices of hearings, etc. Indexes of DOC policies will be available in Spanish and any policy not already in Spanish will be translated on request. Staff are instructed to request a translator if adequate communication is not occurring due to a language barrier.
Effective January 17, 1996, the DOC must notify, in Spanish, all prisoners in its care of the Spanish language materials and services that are available and the process by which they can access those services. All prisoners entering the reception center will be allowed to receive their orientation in Spanish and include information on how to access Spanish language services. Each facility must provide a Spanish language orientation as well.
Because this is not a consent decree, the DOC agrees to implement the terms of the agreement within a 12 to 18 month period and to maintain that compliance for a 12 month period after which it is under no obligation to maintain compliance. During the enforcement period it can be enforced as a contract in state court.
One of the key elements in meeting the enforcement provision of the decree is that counsel in the case needs to be informed as to whether or not the WA DOC is complying with the agreement and providing the services it has agreed to. The agreement is supposed to be translated and posted on bulletin boards and in law libraries. Any situations of non-compliance, after January 17, 1996, should be reported to: John Midgley, Evergreen Legal Services, 101 Yesler Way, Suite 300, Seattle, WA 98104.
While I hesitate to call this a landmark case it is significant in that there are no reported cases dealing with these issues, probably because prisoners who can't speak English can't very well petition the courts. As the number of non-English speaking prisoners in American prisons increases, rights conscious jailhouse lawyers should consider initiating similar suits on behalf of these prisoners. Since we first mentioned this suit in PLN last year I have received two inquiries from other states on this type of litigation. Please keep PLN posted of similar litigation.
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Related legal case
Lopez v. Riveland
|Cite||Case No. C93-1030WD (WD WA 1995)|
The settlement is in the brief bank.