Language skills and the law

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Jeremy Roebuck, "Defendant with no language proves difficult to prosecute", Philadelphia Inquirer 1/11/2011:

As [Juan Jose Gonzalez Luna] has next to no language skills, his case has baffled Montgomery County courts since his arrest on drug trafficking charges late last year. While courts have come a long way in providing access to interpreters in a host of exotic languages, no one is sure how to translate for a man who knows no language at all. [...]

Accommodating those with limited access to language is a rare problem in U.S. courts, but one that judges have met with limited success.

Many have avoided the problem, declaring such defendants incompetent to stand trial. Others have relied on a complex and imperfect method of interpretation, one still viewed with skepticism by many in the legal profession.

And while most courts say they do their best, a good effort is not good enough, said Michele LaVigne, a lawyer and scholar at the University of Wisconsin Law School.

It is not, after all, that defendants like Gonzalez are incompetent to stand trial, but that the U.S. court system largely remains ill-suited for trying them.

"The law is a language-based system," she said. "Drop someone in who can't access that immediately, and we still don't know what to do with them."

The background in this particular case seems to be that Mr. Gonzalez became deaf due to an early-childhood infection, and because he grew up in rural Michoacan, had no opportunity to learn a full sign language, but instead was limited to communication by pantomine and "home sign".

With no formal education and little exposure to other deaf people, Gonzalez grew up virtually without language. He has picked up a few signs over the years.

But this inability to communicate is exactly what made him a valued member of a King of Prussia-based drug trafficking ring, prosecutors say.

Detectives arrested Gonzalez Oct. 8 after a purported cross-country smuggling drive, from Las Vegas to the Philadelphia suburbs, and seized more than two pounds of cocaine from his car.

"He makes the perfect drug mule," First Assistant District Attorney Kevin Steele said. "He can't consent to a search. He can't answer any questions about the operation."

Of course, in this situation, he has an interest in minimizing the extent to which he might have learned either Mexican Sign Language or American Sign Language. However, it's certainly well documented that deaf people without access to a community of signers often grow up with very limited language abilities.

Some interesting discussion of how courts have struggled to deal with defendants who have "minimal language skills" ("MLS defendants") can be found in Brandon Tuck, "Preserving Facts, Form, and Function when a Deaf Witness with Minimal Language Skills Testifies in Court", University of Pennsylvania Law Review, 158:905 2010.

The case of Donald Lang, a deaf man accused of two murders in Chicago, is a well-publicized example of courts wrestling with this issue. Lang came from a poor black neighborhood in Chicago, never attended school, and never learned even a first language. Despite having what could have been the best attorney-defendant fit in lawyer Lowell Myers, who was himself deaf, Lang’s situation confounded the Illinois system.  In no fewer than nine reported decisions, the courts wrestled with how to accommodate Lang. The crux of the issue was whether Lang was unfit to stand trial because he was linguistically incompetent and therefore unable to assist in his own defense. As a result, Lang fought for years against indefinite confinement in a mental institution despite his lack of any mental illness.  In a similar case, the Louisiana Supreme Court approved of the involuntary commitment of James Williams, also deaf and nonlingual, without a trial because he lacked the ability to effectively communicate.  These are not merely the results of yesteryear’s application of justice; courts continue to wrestle with deaf semilingual or nonlingual adults’ linguistic incompetency today.



33 Comments

  1. h. s. gudnason said,

    January 12, 2011 @ 7:16 am

    "Of course, in this situation, he has an interest in minimizing the extent to which he might have learned either Mexican Sign Language or American Sign Language."

    I doubt that he decided not to learn MSL or ASL in order to become a better drug mule. Perhaps he had an interest in minimizing the extent to which he might show that he was familiar with either, but that's not the same thing as deciding not to learn them.

    [(myl) I meant "minimize" in the sense "To represent or estimate (a thing) at less than the true value". In other words, what you said. Sorry for the confusion.]

  2. Brian Davies said,

    January 12, 2011 @ 8:22 am

    Perhaps Montgomery County court should have asked the drug smugglers to interpret for them, because the arrested man obviously understood their instructions. Or perhaps not, and that's why he was caught.

  3. pj said,

    January 12, 2011 @ 8:39 am

    @ h.s. gudnason

    'minimize' (OED):
    2. trans. To represent or estimate (a thing) at less than the true value, significance, etc. Also in weakened sense: to play down; to belittle, dismiss.

  4. GF said,

    January 12, 2011 @ 9:27 am

    I don't want to seem facetious, but if he couldn't communicate, how could he be given orders by the criminals? How could they give him placenames? I'm genuinely curious.

  5. Paul said,

    January 12, 2011 @ 10:08 am

    This story makes me sad that the US Justice system is punitive instead of rehabilitative. In a perfect world, the justice system would help this man learn language and join society. As it stands, he will end up in some institution, and probably join with some other criminal organization.

  6. Mark said,

    January 12, 2011 @ 10:18 am

    GF: Pantomime. Pointing. Hand him keys, show him a map, point to where he needs to be. He clearly isn't non-functional if he is driving cross-country.

  7. Spell Me Jeff said,

    January 12, 2011 @ 10:29 am

    Being able to function does not necessarily make one able to assist his own defense. OTOH, spending time in a mental institution without having a true mental issue sounds like hell. Watch out for Big Nurse.

  8. Mr Fnortner said,

    January 12, 2011 @ 10:40 am

    The fundamental question of mens rea needs to be answered. If Gonzalez has limited language capability, can he be expected to have a sufficient grasp of the legal error of his actions to be considered guilty of anything? Notwithstanding his sufficient ability to [try to] get from A to B with a drug haul, I would think that the man should be released as technically not involved in the crime, just as an infant.

  9. Trimegistus said,

    January 12, 2011 @ 10:40 am

    If the guy could work as a drug mule and drive a freakin' CAR, he's obviously shamming. I assume he really is deaf, but the rest is an act.

  10. J Lee said,

    January 12, 2011 @ 10:44 am

    A mental institution is arguably better than prison.

    Given his obvious guilt he probably would have copped to it (English idiom of the day) anyway, obviating the concern for his capacity to assist in his own defense. Damn Constitution!

  11. Alan Gunn said,

    January 12, 2011 @ 10:53 am

    "A mental institution is arguably better than prison."

    Maybe sometimes. I had a client a long time ago who was suing for various forms of relief, including transfer from a sort of mental institution to a regular prison. He said there was more to do in prison. As it happened, we got him released, which was even better.

  12. Hiroshi said,

    January 12, 2011 @ 11:16 am

    I join GF in being curious how Mr. Roebuck could have received orders or made deliveries if he is genuinely without language. Last year, there was a segment on Radiolab suggesting that without language, our ability to cope with seemingly non-verbal information like spatial relationships can be seriously impaired.

  13. Dan Lufkin said,

    January 12, 2011 @ 12:11 pm

    1. How did he get a driver's license? (Prolly didn't have one.)
    2. How did he manage road signs? (As ideograms maybe.)

  14. ENKI-][ said,

    January 12, 2011 @ 12:43 pm

    To reference another big story making the rounds, 'what is the law if words have no meaning?' I guess the answer is: if you can't assign meaning to any words, the law will have a hard time touching you without contradicting itself.

  15. GeorgeW said,

    January 12, 2011 @ 1:38 pm

    Hiroshi: I heard that Radiolab segment. As I recall, they seemed to be claiming that the deaf subject was unable to think before he was taught a sign language. With no cognition, I wondered how he was able to function at all.

    BYTW, this segment would be a good post on Language Log.

  16. Mark F. said,

    January 12, 2011 @ 1:45 pm

    Most of what I've read about evidence for the critical-period-for-language-acquisition idea, which has been generally in stuff directed at non-linguists like me, has talked about feral children. But it seems like deaf children not exposed to sign language until their late teens are a better test case. I guess there must have been studies of such people in this context, right?

  17. Ran Ari-Gur said,

    January 12, 2011 @ 1:49 pm

    @J Lee, who wrote "A mental institution is arguably better than prison": You might prefer to be sentenced to X years in a mental institution than to X years in prison, but would you like to be in a sort of legal limbo that keeps you locked in a mental institution with no clear release date (and no guarantee that you won't end up serving a prison sentence anyway)?

  18. Story concerning man with ‘no language’ and the law | clinicallinguistics said,

    January 12, 2011 @ 2:08 pm

    [...] might be interested in this story, published today on Language Log, and derived from Jeremy Roebuck, "Defendant with no [...]

  19. Ray Girvan said,

    January 12, 2011 @ 2:10 pm

    @myl: "Of course, in this situation, he has an interest in minimizing the extent to which he might have learned either Mexican Sign Language or American Sign Language."

    For some reason, Ian Fleming's You Only Live Twice springs to mind, the scene where Bond is pretending to be a mute Japanese peasant. Blofeld gets him to sit on a sort of stone lavatory crusted with volcanic mud.

    Blofeld spoke from the other end of the room. He spoke in English … "Commander Bond … this is the Question Room, a device of my invention that has the almost inevitable effect of making silent people talk. As you know, this property is highly volcanic. You are now sitting directly above a geyser that throws mud, at a heat of around one thousand degrees Centigrade …"

    "… at the fifteenth minute past eleven, you will suffer a most dreadful death by the incineration of your lower body. If, on the other hand, you leave the seat before the death moment, you will have demonstrated that you can hear and understand and you will then be put to further tortures which will inevitably make you answer my questions."

  20. chris said,

    January 12, 2011 @ 2:49 pm

    As it stands, he will end up in some institution, and probably join with some other criminal organization.

    How can he join with a criminal organization if he can't communicate with its members? For that matter, how could he have joined the conspiracy he was accused of being part of? Did he learn how to drive purely by experimentation and/or imitation? (Yikes.)

    I also wonder how the prosecution intends to prove that he knew what was in the package, given that he clearly couldn't have been told what was in it, or ever heard or read how to identify contraband substances. (For that matter, even applying the ordinary presumption that anyone should know the law if they bothered to go find out seems somewhere between ludicrous and monstrous.) If he didn't understand the nature or significance of the package, it would obviously be unjust (even if technically legal) to punish him for transporting it.

    …On the other hand, I somewhat suspect that his "languagelessness" has been played up for the media, and he actually *can* communicate usefully with at least a modest number of family/friends… some of whom must therefore have set him up as the mule.

  21. Teresa G said,

    January 12, 2011 @ 3:28 pm

    There are people who are trained to communicate with people like Mr. Gonzalez. They are known as CDIs (Certified Deaf Interpreters) and are themselves Deaf or hard of hearing.

    If Mr. Gonzalez is uncooperative with CDIs (which is impossible to tell from the article linked to), then Mark's point about deliberately minimizing his understanding is likely valid. I would think that anyone truly confused by his situation would be eager to try and communicate with a CDI in order to help himself out.

    Of course, even if Mr. Gonzalez is being cooperative, if he truly has no understanding of the legal system or what he has done wrong, then there's still a huge problem that no CDI (however skilled they may be) can solve.

    For more info see: http://www.rid.org/UserFiles/File/pdfs/120.pdf

  22. Eli said,

    January 12, 2011 @ 3:33 pm

    @Paul: at Mr. Gonzalez's age, it would be impossible for him to learn anything resembling real language. That ability wanes as one grows and is lost at about puberty.

  23. Ray Dillinger said,

    January 12, 2011 @ 6:05 pm

    As it was explained to me, anyone can learn what my instructors called 'protolanguage', regardless of age. But protolanguage is heavily context-dependent. It treats words (or signs) as symbols the way language does, but doesn't have grammar. A protolanguage speaker can throw out the symbols for "big", "eat", "mouse" and "cheese" and the listener has to work out for himself whether it's the mouse that's eating the cheese or the cheese that's eating the mouse, and whether it was the mouse, the cheese, or the act of eating that was big. Fortunately, in cases like the above it's usually fairly obvious. Protolanguage, if used in habituated circumstances, suffices to communicate basic needs, simple instructions, and so on.

    But law, generally, cannot be expressed on the basis of protolanguage. In order to express laws, you have to have ways to distinguish agent and patient, different types of conjunctions, exclusion clauses, dependent phrases, definite associations of adjectives with nouns and adverbs with verbs, and other types of communication that we generally convey with grammar.

    Mr. Gonzalez apparently has protolanguage but not language. He's functional, and not stupid, but communicating the precise meaning of the law to him would be difficult at best and may be impossible.

  24. Ed said,

    January 12, 2011 @ 6:58 pm

    I couldn't find anywhere in the original article that says exactly when Gonzalez went deaf, and it doesn't say whether or not he was raised with a family or friends. It was my understanding that to truly have no language, one would have to be feral, because amongst people, the need to communicate will take over and you will at the very least develop some sort of rudimentary sign (with some sort of internal grammar to accompany it). In other words, the man may have language, but may not speak/sign a language that anybody else can translate. I'd think he is less like a feral child, and more like the last uncontacted speaker of a language isolate (who has never met any speaker of another language).

    I don't know if this is a differentiation that needs to be made for the needs of the legal system, at least in the sense of conducting a formal hearing. But it ought to have some bearing on deciding whether or not he is mentally fit to stand trial.

  25. maidhc said,

    January 13, 2011 @ 12:24 am

    That Radiolab show was very interesting, and the person it describes did learn ASL and become fluent in it as an adult. His teacher wanted him to describe what it was like to be without language, but he basically said it was a state that could not be described using language.

    What was interesting was that she worked with him for months with no result, and then suddenly at a single instant he got the concept.

    The show also discusses Nicaraguan sign language, which was spontaneously developed by deaf people. Worth listening to.

    Here's the link: http://www.radiolab.org/2010/aug/09/

    I don't think the drug mule could read a map if he's totally without language. But it's possible that he might not understand enough language to get the concept of laws and a legal system. But the same might be true of a hearing person raised with no education.

  26. amaya said,

    January 13, 2011 @ 2:26 am

    I teach special ed, and my students range from non-verbal to non-lingual, to minimally lingual. For a point of clarification, non-verbal students have receptive language, and are unable to speak. Different methods of expressive language have to be used, ranging from sign, to picture communication, to different types of computerized communications devices. Non, and minimally lingual kids have limited access to language as a whole, much as the defendant in this case. Some of my students are deaf, none of them are fluent signers.

    Most of their families can reliably interpret their needs, and understand their efforts of communication despite their limited language skills, via gestures, concrete objects, intuition, and knowing their child well.

    Even my most linguistically challenged students are able to follow a routine. They know what to do when they enter the classroom, they know what's going on in the classroom, they know their way around campus, to restrooms, the playground, the lunch room, office, and back to our classroom. Some of their parents report that they think their kids know their way around town, because of their reactions when their parents drive to certain places, and make certain turns. One day, these kids will work in supervised work environments, and possibly get around town independently on public transportation.

    My students are all significantly cognitively impaired, and while it stands to reason that this individual's complete lack of language has altered his cognition, he could very well be functionally miles ahead of my students. It does not surprise me at all that he can drive across the country as a drug-trafficking mule. All it would take is someone to have ridden with him until he memorized the route. Chances are, he stops at the same gas stations, eats at the same places, and sleeps in the same motels every trip, because that was the routine taught the first time.

    As a side note: the Nicaraguan Sign Language phenomenon is not an isolated incident. The human brain wants language. There is even a theory that it is hard wired for a base grammatical structure, which ends up becoming lost as the grammar of a learned language takes root. A bunch of deaf people develop a means to communicate with each other. There is a case of severe child abuse/neglect in which siblings, I believe they were twins, if memory serves, that were completely isolated from family, raised in a room, never had interaction, or language exposure, but developed a language between themselves as well.

  27. Jason L. said,

    January 13, 2011 @ 2:32 am

    "A mental institution is arguably better than prison"

    Not for a high-functioning patient, that is, someone who has something like a depressive or anxiety disorder, rather than a low-functioning patient, who has trouble feeding, dressing, and bathing themselves. For the former, it is a living hell:

    The reality of the psychiatric hospital is, unfortunately, much bleaker than even popular culture would lead us to believe. The hospital is a good place for low-functioning people with thought disorders or severe personality disorders to get stabilized on their meds. The hospital is no place for a high-functioning depressive.

    What could you expect if you were involuntarily hospitalized? First, don't expect for there to be people like you around. Most people involuntarily hospitalized are the aforementioned low functioning folks with thought disorders (like schizophrenia) and severe personality disorders (like borderline personality disorder). "Low functioning" means that these people will mostly have a hard time engaging in normal activities of daily living, like washing themselves, feeding themselves, and having a conversation. You will share a room with one or more of these people.

    You won't get individual therapy (one-on-one talk therapy). It's too expensive, and not very effective for the hospital's normal clientele, those low functioning folks with thought disorders. The usual plan for low functioning people with thought disorders is to "stabilize them on meds" – they come in psychotic, they are given antipsychotic medication for a while, and their psychosis disappears. (Medication may be forced in most states. Some states require a hearing before forced medication may happen; these are generally rubber-stamp proceedings.) This process has a very high success rate for low functioning people with thought disorders; individual therapy is not seen as effective or necessary.

    Generally, hospitals try to apply the stabilize-on-meds approach to high functioning depressives, with mixed results. As mentioned above, individual therapy is not available. Instead, expect mandatory "group therapy." Group therapy, in a private, outpatient setting, is often interesting and productive, given a group of intelligent, high-functioning, thoughtful people. You will not find that in a hospital. Instead, you will find yourself in group therapy with that same group of low functioning people with thought disorders that you've been rooming with and eating with and smoking with during your stay. Often, group therapy takes the form of practicing activities of daily living – say, writing a letter, or washing oneself. This would be very helpful for a low functioning person with a thought disorder; it is humiliating and harmful for a high functioning depressive.

    http://theviewfromhell.blogspot.com/2008/04/myth-of-hospital.html

  28. chris said,

    January 13, 2011 @ 10:27 am

    @Jason: Since the solution to that problem (segregate the high-functioning patients in a separate wing, floor, or even institution, since the methods appropriate to treat them are so different) is obvious even to a layperson, why hasn't it occurred to the professionals? Or if it did occur to them, why don't they do it?

  29. John said,

    January 13, 2011 @ 2:38 pm

    @Alan Gunn, Ran Ari-Gur, Jason L.: I think J Lee is using arguably in the sense of open to argument, and is not claiming that a mental institution actually is better than prison. But thanks for proving the claim.

  30. John Cowan said,

    January 13, 2011 @ 4:58 pm

    Mental hospitals vary immensely, and fully voluntary self-admission is very different from involuntary commitment, or even "voluntary" commitment under the influence of alcohol or other judgment-altering drugs.

  31. Diana said,

    January 13, 2011 @ 9:37 pm

    A full language battery testing his receptive capabilities as well as his cognitive functioning should be administered. Psychological and audiological batteries should also be administered. If he demonstrates valid inabilities to communicate and use language, and/or presents with cognitive delays, he should not be prosecuted as an individual with typical abilities. Although he was not able to engage in discourse, it appears that he demonstrates functional communication, which can be easily gathered through the life-span. He may have engaged in following simple or complex instructions, and may know rote responses – this does not insinuate that he is fully comprehending the messages he was given. I gather that he was a mule – used for his ability to complete simple tasks – point A to point B.

  32. Wells said,

    January 18, 2011 @ 12:47 pm

    I found Amaya’s comment about functional capacity despite cognitive deficit or limited access to language helpful and interesting to read. According to Amaya it is possible for a low functioning person to drive alone from Las Vegas to Philly. From a practical legal standpoint, Mr Fnortner is dead-on about mens rea, which element may be difficult to establish, for the drug trafficking ring members would have no reason to inform Mr. Gonzalez that he was transporting cocaine. However, this practical matter obscures a more fundamental legal dilemma, one better demonstrated in the case of Mr. Lang mentioned in the Tuck article. A mentally healthy person with limited language ability can commit a crime (including meeting the standard of concurrent mens rea), but be unable to assist in his own defense. This person could not, therefore, be judged guilty at a fair trial. But should society consider it just that this person be involuntarily committed to a mental hospital, or, alternatively, be considered not subject to prosecution, as in the doli incapax (child under 10 YOA) example that Mr Fnortner also mentions?

  33. Jen said,

    January 21, 2011 @ 9:37 pm

    "A mental institution is arguably better than prison."

    While it is "arguably" better than prison, I have heard many stories to the contrary. During my stay at a state mental institution, I learned that the "NGRI's", as they were called (not guilty by reason of insanity), often spent more time in the mental institution they were committed to trying to prove their competence so they could be released than they would have in prison if they had simply pleaded guilty or nolo to their alleged crimes. Getting out of a hospital for the criminally insane is a hard thing to do.

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