Category Archives: Deaf legal rights

How the Criminal Justice System Fails the Deaf Community

deafness-criminal-justice-01Imagine a situation where you are accused of a crime– perhaps a crime you did not commit, or maybe even a crime you were the victim of. The arresting officers use a different language; you’re unable to communicate what happened before you get brought to jail. There is no way for you to contact your family or an attorney. Your legal rights are not accessible to you.

From frightening and dangerous arrests, to the lack of access to reentry services, our justice system fails deaf Americans every step of the way. I recently spoke with Talila A. Lewis, an attorney and civil rights activist, about the fight for deaf access to justice. In 2011, Lewis founded the DC-based all-volunteer nonprofit organization called Helping Educate to Advance the Rights of the Deaf (HEARD).  HEARD is dedicated to ensuring deaf and disabled people receive equal access to the legal system. HEARD focuses on educating justice professionals; correcting and preventing deaf wrongful convictions; ending abuse of deaf and disabled prisoners; and on increasing deaf involvement in the justice, legal, and corrections professions.

talia-lewis-deaf-02Most recently, HEARD has teamed up with the American Civil Liberties Union (ACLU) and Academy Award-winning actress Marlee Matlin, to lead a campaign to end police brutality against the deaf.

“Deaf wrongful convictions often begin when police officers fail to ensure that communication is effective pursuant to federal disability rights laws,” said Lewis.

To contact law enforcement, a deaf individual might use a videophone, which places an interpreter between the deaf caller and the 911 dispatcher. The dispatcher must then relay all information accurately from the interpreter to the responding officer. If it is a hearing person who dials 911, they might not tell the dispatcher that there is a deaf person on the scene.

According to Lewis, who is tracking incidences of police brutality and discrimination against deaf people across the nation, effective communication during this initial stage is critical to preventing wrongful arrest and convictions. Unfortunately, police officers sometimes rely on unqualified third parties—including children, and even alleged abusers—to facilitate communication during these interactions.

deafness-criminal-justice-911Rarely, if ever, do ASL interpreters arrive on the scene with the police. Many times, police show up completely unaware that they are working with with a person who is deaf. This can lead to dangerous misunderstandings.

For instance, Philip Wolfe escaped a domestic dispute and had a friend call the police. Although the dispatcher was informed that Wolfe was deaf and required an interpreter, the police showed up without one and completely misunderstood the issue. The domestic abuse charge was never filed. Wolfe’s partner returned that night and abused him again. In Oklahoma, sixty four year old Pearl Pearson was pulled out of his car and beaten by police as he attempted to show them a card that said “I am deaf.” The officers were not charged for the attack; but Pearson was charged with resisting arrest.

pearl-pearson-deaf-police-brutality-04Once a deaf individual has been taken into custody, it is the responsibility of police officers to ensure that access to communication is effective. Communication may require releasing a hand from handcuffs, cuffing hands in front of a person, providing Certified Sign Language Interpreters or Certified Deaf Interpreters, or perhaps another accommodation, as there are many. The Americans with Disabilities Act (ADA) makes clear that police departments are responsible for providing reasonable accommodations and that preference for the type of accommodation goes to the deaf person; but deaf people nationwide report that police departments are not in compliance with the law.

I spoke with Maria Dollhopf, a deaf woman who experienced injustice during the legal process. According to Dollhopf, the arresting officers in her case made excuses and persuaded her that she did not need an interpreter.

deafness-criminal-justice-05“I kept gesturing for them to take me out of the cuffs to communicate, but they wouldn’t,” said Dollhopf. “The police said they couldn’t get an interpreter, so I had to stay in jail overnight. It was over 24 hours that I did not have an interpreter. I felt like i had no lifeline of communication.”

According to Lewis, officers sometimes draft statements without providing accommodations; and sometimes without consulting the deaf person at all.  “Many deaf people who use sign language as their first or only language have expressed to me that they did not—and often still do not—understand what was written but they felt intimidated, frustrated, fatigued and pressured into signing these documents. Even the best attorney will struggle to defend against a signed statement.”

Justice and legal professionals often lack deaf cultural competency, which plays a major role in deaf discrimination and oppression. Cultural competence refers to the ability to effectively interact with individuals from different cultures. For example, if detectives and attorneys do not understand that ASL is its’ own language, they may assume that writing notes back and forth with a deaf person is adequate. Lewis reminds us that several of the possible deaf wrongful conviction cases HEARD is currently investigating resulted from this very situation.

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“A recent Disability Rights California study on law enforcement training and mental health crisis intervention revealed that California’s police academy standards only require six hours of 664 hours of training be dedicated to disability,” said Lewis. “Within those six hours, cadets are supposed to cover a wide variety of disability-related topics and numerous disabilities. That is simply not enough. Moreover, the training should be developed and taught in conjunction with people within those specific disability communities.”

By getting to know the diverse communities they serve, law enforcement agencies can help eliminate some of the barriers to justice. Cultural competency means spending far more than 6 hours learning about people with different abilities.

 

Jason “JT” Tozier is the HEARD Deaf Community Liaison. JT offered to share his experience with the legal system 20 years ago. “When I went to the station for fingerprints and to have my photo taken, I had no idea what was going on. The police kept talking to me and trying to force me to read their lips, but I am Deaf and I sign! I told them I needed an interpreter but they kept denying me this access.”

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“When I first arrived in court, the judge tried making my brother interpreter for me,” recalls JT. “He wasn’t certified, he was only 17 or 18 years old. He didn’t want to interpret, but he felt very pressured to.” JT’s trial was postponed 3 times before a court interpreter was provided.

Legal interactions are critical, so a qualified interpreter is the most effective accommodation for deaf people. Courtrooms and jails are both required by the ADA to provide reasonable accommodations for people with disabilities. The same goes for attorneys. To deny an interpreter is to deny equal access. Yet, time and time again deaf people are refused interpreters through every step of the legal process.

 

“The possibility of a person being wrongfully convicted only increases as time passes without consulting an attorney,” explains Lewis. “Immediate and effective attorney client communication is key. If the only way to access your attorney is via sign language and the jail fails to provide a videophone, you have no way to communicate with your attorney.”

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In many cases, lawyers do not know that they are required by law to provide ASL interpreters. Both Dollhopf and JT recall feeling confused and alienated from their respective attorneys throughout the legal process. “I didn’t really feel like the lawyer’s client because he did not offer me access,” said JT. “By the time an interpreter was finally provided, I just felt like everything was going over my head.”

Part of HEARD’s mission is educating those who work in the criminal justice system about providing access for the deaf. Lewis explains that in many cases, the courts themselves do not even understand where a deaf person’s rights have been violated. “There are lawyers who do not understand that they are required to provide interpreters pursuant to the ADA. Judges, public defenders, the bar. Administrators of justice have to become more culturally competent.”

The United States Department of Justice is responsible for enforcing the core provisions of the ADA. Unfortunately, said Lewis, there has been very little focus on these cases for myriad reasons. Lewis also explained that agencies sometimes have procedures related to working with deaf people, but policies are often outdated, or never implemented. Even the best policies become meaningless without enforcement. The end result is a criminal justice system full of entities that do not understand or comply with the ADA.

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There are thousands of deaf prisoners all across the country, yet only 6 prisons have video phones. Inmates are denied access to their family, friends, and legal counsel because effective communication technologies are not present, or because the staff does not know how to operate or “supervise” calls on the antiquated and unreliable equipment. Incarcerated deaf people are subsequently isolated, left out of prison orientations and safety meetings. Both Dollhopf and JT recall the guards in jail simply ignoring them, as if they were not human beings.

It’s practically impossible to overturn a wrongful conviction when you have no line to the outside world. A deaf man in Florida, Felix Garcia was sentenced to life in prison after his siblings framed him for murder in the 1980s. They have since admitted that Felix was not involved with the crime but, with only a 4th grade education, Garcia did not know or understand his rights throughout the legal process. He was unable to advocate for himself, and nobody came to his aid then. Former HEARD board member Pat Bliss, has worked on Felix’ case for nearly two decades and is currently supporting a bid for clemency for him. Like many deaf people who receive little or no access to communication throughout life, Garcia had simply gotten used to smiling and nodding his way through things. To date, Garcia is HEARD’s longest serving deaf wrongfully convicted prisoner—now on his thirty-third year in prison.

One major problem, notes Lewis, is that no one knows exactly how many deaf people are in the criminal justice system. HEARD created and maintains the only national database of deaf and deafblind prisoners, but Lewis emphasizes the importance of mandated tracking of deaf prisoners by government agencies and is pushing for the Department of Justice to create national standards for inclusion of and protection for deaf incarcerated people.

Empowering deaf individuals to become effective self-advocates is another major focus of HEARD. The organization has teamed up with the ACLU to produce videos that educate Deaf Americans about their civil rights, and Lewis and her deaf students at Rochester Institute of Technology/National Technical Institute of the Deaf are developing the first deaf-accessible resources on mass incarceration.

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“The hearing community talks non-stop about mass incarceration,” said Lewis. “Deaf people and people with disabilities are overrepresented in the prison population and the school-to-prison pipeline. I was trying to teach my students about mass incarceration, but there was just no accessible material available– nothing captioned or signed. So we had to actually create the videos for the Community.”

JT also emphasizes the importance of self-advocacy. “Know the Miranda rights, know your civil liberties, study the ADA. If you inform yourself and become educated, you can protect yourself. The police and legal system are going to try to oppress you. Be ready to stand up against that and know what you are entitled to!”

Lewis’ believes that creating equal access to justice requires intentional infusion of diversity into our justice system. “We need deaf professionals involved at every level. We need deaf consultants creating training programs and advising management. We need to see more deaf police officers, attorneys, judges, and prison officials.” Certified Deaf Interpreters and/or Certified Legal interpreters should be mandatory for legal proceedings involving a deaf signing individuals. More advocates within the system increases the odds of justice being served.

Deaf Americans deserve their constitutional rights, as guaranteed by the ADA. The legal process can be overwhelming for anyone, but for deaf people with no access, it can be confusing, dehumanizing, isolating, and treacherous.

“Honestly, it’s just not easy when you are deaf,” admits Dollhopf. “You can’t fight with the police, you can’t force them to get an interpreter. I was not able to get the services I needed, from the beginning. But what are you supposed to do? They make you feel like you have no voice.”

Deaf Rights: What You Need to Know

Sheryl Eisenberg-Michalowski_MAWorking in the Deaf community, I’ve noticed a great deal of confusion surrounding the legal rights of the Deaf. Both Deaf and hearing individuals have difficulty understanding what accommodations deaf people are entitled to, and how exactly those needs
get met. I recently had a chance to discuss these important issues with Sheryl Eisenberg-Michalowski, who serves as a Deaf legal liaison, and Deaf discrimination attorney Andrew Rozynski, Esq.

Deaf Rights

Sheryl Eisenberg-Michalowski — who serves as Deaf Liaison at Eisenberg & Baum Law Center for the Deaf and Hard of Hearing — explains that Deaf persons frequently encounter barriers when trying to protect their rights. Profoundly deaf since birth, Eisenberg-Michalowski has personally witnessed discrimination against deaf individuals from all walks of life, in a wide variety of scenarios. Utilizing her extensive experience, Eisenberg-Michalowski serves as an advocate for deaf, hard of hearing, and deaf-blind individuals; helping people better understand how to protect themselves against discrimination.

professional-asl-communication-nyc“Imagine yourself as a deaf individual with virtually no knowledge regarding the law. You may have been faced with job discrimination, personal injury, sexual harassment, or denied ASL interpreters for medical care. Obviously, legal assistance is needed, but the lawyer who takes your case may have no knowledge of Deaf culture or the needs of deaf individuals.” Eisenberg-Michalowski explains that many attorneys will take valid discrimination cases, but neglect to provide guidance for their Deaf client. “Without interpreters, clear communication with your lawyer is nonexistent. Where are your rights?

“Over the years, many laws have been passed in order to improve quality of life for deaf individuals,” she continued. “But even with today’s laws, I still see so much Audism– a term meaning the oppression of the Deaf, hard of hearing, and deaf-blind.”

Andrew_Rozynski_EsqAndrew Rozynski, a Deaf discrimination litigation attorney and partner at Eisenberg & Baum, LLP, offers some insight into Federal legal obligations to provide reasonable accommodations. Rozynski comes from a Deaf family, and his clientele is almost exclusively deaf. He is one of only a handful of attorneys in the United States who focuses his practice on the protection of Deaf persons rights.

“As a Deaf rights attorney, I focus my practice of law on combating discrimination against the Deaf in a variety of settings,” said Rozynski. “Hospitals, government, businesses; these are just some of the areas of everyday life where Deaf people require accommodations.”

ada-deaf-hohThe Americans with Disabilities Act (ADA) requires many public and private entities to provide reasonable accommodations for the Deaf to ensure effective communication. What is a reasonable accommodation varies from situation to situation, and the need for accommodation can be different in each setting. Since each Deaf person has individual needs, determining what accommodation is appropriate can sometimes be confusing. Rozynski offered to elaborate:

“Reasonable accommodation is very ‘fact specific,’ which means it is evaluated on a case-by-case basis,” he explained. “It really depends on many factors, however, two important factors that are utilized are: (1) What are the Deaf person’s needs to facilitate effective communication, and (2) The length and complexity of the communication.”

So, how do you know if an interpreter is necessary?

“Assuming the Deaf person uses ASL as their primary form of communication, hospitals are one setting where a qualified sign language interpreter is almost always appropriate because critical communication concerning medical treatment is being conducted. In government settings– such as court proceedings or interviews with the police– interpreters are crucial for effective communication, because ones’ legal rights can be seriously impacted by miscommunication. In the employment setting, having interpreters for business meetings ensures that deaf employees can participate equally in the workplace.”

three_people_ASL_signingRozynski went on to provide further examples. “In the alternative, if you go in to a sandwich shop and request an interpreter, would that be appropriate under those circumstances? Probably not. “

“But, say a Deaf person is looking for a house and needs an interpreter to effectively communicate with the real estate broker. That might be an instance where people don’t know they have the right to request an interpreter. Or if one is getting a mortgage from a bank, that is another instance where a deaf person may be entitled to an interpreter so that they can fully understand the terms of the agreement as explained by the bank”

For brief interactions, like those in retail and restaurant locations, writing notes may be an appropriate option. The amount of information being communicated is often minimal and the content of the communication is simple. However, note writing is not always the solution.

ASL-in-hospital-setting“Sometimes doctors think writing notes back and forth for an appointment is an effective means of communication. It’s often not,” He continued. “Imagine trying to have a 20 minute phone conversation via handwriting. Would you explain yourself just as thoroughly? When people write, they often only give brief summaries of the information they want to convey. Additionally, people whose primary language is ASL may have some difficulty with the English language, making this method ineffective.”

The more critical and complex the communication, and the longer the interaction; the higher likelihood an interpreter will be needed. For example, a business training seminar or disciplinary meeting would both be times where an interpreter is an appropriate accommodation, because the information being relayed to the Deaf individual is very important and specific. ASL interpreters also serve as cultural mediators, bridging any gaps between Deaf and hearing culture so all parties can fully understand the messages being relayed.

“What accommodation is needed, is what provides for effective communication for the Deaf person,” said Rozynski.

asl-in-workplace-video-relayOne strategy that is being utilized across the country is Video Relay Interpreter (VRI) systems, which provide a professional interpreter through a video connection. “There are a lot of Deaf people who complain that VRI does not provide effective communication because the system will freeze, or not turn on, or staff members who are trying to use the VRI don’t know how to use it. Sometimes the screen is very small, or not suitable for the situation. For example, if someone is giving birth they often cannot look at a tablet off to their bedside. It’s generally not effective. Providing effective communication is key to each situation.”

In the work setting, both employer and employee should work together in an interactive process. The Deaf employee should let their manager know clearly what their communication needs are, and what situations they would like an interpreter for. Employers and places of public accommodation should analyze whether they are truly doing everything possible to ensure the Deaf individual receives equal access to all information being provided by the organization. Deaf parties should be realistic about what accommodations are necessary for each specific situation.

asl-in-metropolitan-museum-of-art“People often think that they can just refuse VRI without trying it, which isn’t always the case. Often times, people should try VRI if it’s offered. If it is not effective, you have the right to request a live ASL interpreter so that you can be provided effective communication” said Rozynski. VRI, if it works properly, can be a solution for short one-on-one communication—for instance when a hearing employee needs to have a brief conversation with a Deaf coworker. But in situations where there are multiple parties speaking, the information is critical, or where the equipment is not functioning correctly, VRI is usually unable to provide effective communication for Deaf individuals.

If you are a hearing entity responsible for providing reasonable accommodation, Rozynski has a few tips to ensure you provide equal access. Step one is contacting a reputable interpreting agency. Look for agencies that employ RID Certified interpreters and have a great deal of experience working with Deaf consumers. Businesses should be aware that if a meeting will last more than an hour, depending on the type of meeting, it may be required that 2 interpreters are provided. Also, make your interpreter request as far in advance as possible so that there will be no problems with scheduling, and the interpreter has ample lead time to prepare. Providing a professional interpreter is not optional when it is the only means of providing effective communication for the Deaf individual.

“Using family members or coworkers is also not ok,” he said, unless the coworker is designated by the business entity as a qualified staff ASL interpreter. Otherwise “it’s not appropriate.”

asl-in-the-workplaceIf you are a Deaf person requesting accommodation, Rozynski advises you communicate with a manager and keep a record of your requests. “I always recommend people make their requests in writing, just to be clear that a request has been made. If you still do not get your request for accommodation, I would suggest going up the chain as far as possible. If you still feel like you’re not being provided appropriate accommodations, ask for the reason why.”

Rozynski says that business often claim they are unable to afford sign language interpreters. “This is often disingenuous. Hospitals, banks, and big corporations are often able to pay for an interpreter.” He points out that the ADA looks at the financial strength of the whole organization when considering if an interpreter is cost prohibitive. A large museum, for example, may not refuse to provide an interpreter because it causes them to lose money on a $20 ticket. The same goes for doctors and dentists offices. It is the whole entity that is looked at, not the cost of the individual service provided.

“If you’re an employer or you’re a place of public accommodation, you have an obligation to provide effective communication to that Deaf person. If you do not provide effective communication to a Deaf person, you could potentially be opening yourself up to liability and have a lawsuit that could cost your organization much more than the cost of the interpreting services provided.”

deaf-hoh-asl-in-court-reportingIf the Deaf party still feels that equal access is not being provided, that person may have a legal claim.

“I would suggest someone who feels that their rights are violated should contact either an attorney or a local advocacy organization,” advised Rozynski. “Some attorneys do charge to take on discrimination cases; others don’t have any upfront charges and take the case on contingency, which means you don’t pay unless you win or the case settles. Many attorneys offer free consultations, and will let you know whether you have a viable case or not. It is also important to note that all cases have a statute of limitations, so if you feel your rights may have been violated an attorney should be contacted as soon as possible.”

“I think a lot of people are scared to take this next step because they worry that they will have to pay money to proceed with a lawsuit. Another reason for peoples hesitation is that they might not be comfortable with the legal process. This can be tough for people because they don’t know what to expect. Finding a law firm that a Deaf person can be comfortable with is key. The Deaf public should know that attorneys do have an obligation to provide interpreters– some attorneys are not even aware of that!”

child-asl-signingEisenberg-Michalowski adds that Deaf liaisons are also critical to the legal process because they can empower Deaf individuals to actively advocate for themselves. “We have had clients who are shocked at how involved they are in their cases, when compared to their previous law firms. One client told me that his (former) lawyer just made decisions without him. This treatment is a violation of these individuals’ legal rights.”

At the end of the day, most Deaf people do not want to go through a lengthy court battle to get the accommodations they deserve. They just want the equal access they are legally entitled to by the law. Providing reasonable accommodation is not a burden, it should be an expected cost of doing business. Welcoming Deaf individuals into all spaces is not just the law. It’s the right thing to do.

“I think the point is that these discrimination laws were created so Deaf people could equally participate in society,” concludes Rozynski. “It is our obligation, as a whole society, to ensure Deaf people have equal participation and that they can access the same kind of information that hearing people do in any type of setting.”

If you have any further questions, Andrew Rozynski and Sheryl Eisenberg-Michalowski can be contacted at:

Eisenberg & Baum, LLP 24 Union Square East, 4th Floor New York, NY 10003 Voice: (212) 353-8700 Video Phone: (646) 807-4096