Is it permissible to charge the interpreter expenses to a non-English speaking defendant?

RCW 2.43.040 (2) states that in all criminal proceedings in which the non-English-speaking person is a party, the cost of providing the interpreter shall be borne by the governmental body initiating the legal proceedings. [The same holds true for sign language interpreters under RCW 2.42.120 (1).]

Confusion arises because section (4) of this same statute provides:  The cost of providing the interpreter is a taxable cost of any proceeding in which costs ordinarily are taxed.  RCW 2.43.040 (4).

State v. Marintorres, 93 Wn.App. 442, 969 P.2d 501 (1999) held that the collection of costs from non-English speaking individuals needing an interpreter, but not from individuals needing sign- language interpreters, violated the equal protection clause of the Washington State Constitution, Article 1, Section 12, and the Fourteenth Amendment to the United States Constitution.  This finding was based on the fact that section (4) is included in the non-English-speaking interpreter statute, but not in the sign language interpreter statute.  In other words, section (4) allows interpretation costs to be recovered from non-English speaking individuals, but not from hearing- impaired individuals.  We find no reasonable rationale for treating hearing-impaired convicts differently from non-English speaking convicts in deciding who should reimburse the State for the cost of interpreters.  State v. Marintorres at 452.

Additionally, RCW 10.01.160 (1) and (2) state that costs may be imposed only upon a convicted defendant, and costs cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of the law.

State v. Woo Won Choi, 55 Wn. App 895, 901 (1989) rev. den. 114 Wn2d 1002 (1990) held that the right to an interpreter affects a defendant Sixth Amendment Right of confrontation and the right inherent in a fair trial to be present at one's own trial.

Since State v. Marintorres (cited above) held that the inconsistency between the two interpreter statutes violates equal protection rights, the Administrative Office of the Courts recommends a cautious approach in which interpreter costs are not charged (taxed) to the defendant.  The above references also appear to indicate that the cost of providing interpreters is inherent in providing the constitutional right to trial and the court cannot shift that cost to the defendant.

Caveat.  This analysis is intended to assist the Administrative Office of the Courts (AOC) in making policy decisions.  It is not intended as, nor should it be construed as, a legal opinion in the nature of an Attorney General's Opinion.  The official legal advisor for individual courts is the county prosecutor or city attorney, not the Administrative Office of the Courts.

See also: RN id 1635: Imposing interpreter costs in a civil infraction case against a defendant who fails to appear.

RN id: 2072