Learn English or do time?

You may have already forgotten about Peter Paul Olszewski Jr., the Luzerne County, Pennsylvania judge who last week imposed, as a condition of probation, that a number of Spanish-speaking defendants, convicted of robbery, learn English or face prison.

The link is to a Chicago Tribune reprint of a Philadelphia Inquirer story by Angela Couloumbis. There were 50 comments posted to the March 28 Tribune story as I began writing this -- a predictable exchange of sniper fire between those who are pro- and anti-immigrant and between people who think that English should be made the official language of the country and those who think people who think that way are necessarily racist reactionaries. One poster seems to want George Bush deported on account of the President's celebrated difficulties with standard syntax.

However amusing these comments may be, I'm more interested in the idea of whether a non-standard condition of probation like that imposed by Judge Olszewski can really, in a proper case, help a young offender get on a productive path. As a civil lawyer, unfamiliar with criminal law, I couldn't put the issues in perspective without doing a little homework. I could only recall one instance where an Illinois judge had a policy of imposing non-standard conditions of probation: It didn't go well for Samuel G. Harrod III, the haircut judge in the 1970's, although the one month suspension imposed on him by the Illinois Courts Commission was ultimately vacated by the Supreme Court. People ex rel. Harrod v. Illinois Courts Commission, 69 Ill.2d 445, 372 N.E.2d 53 (1978).

In doing a little research I learned that §5-6-3 of the Unified Code of Corrections gives a sentencing judge to power, at least in Cook County, to require a person on probation to pursue a high school diploma, GED or a court-approved vocational training program. (See, 730 ILCS 5/5-6-3(a)(7).) I could find nothing in the Illinois statute, though, about requiring a probationer to learn English.

To get some additional context in which to evaluate what Judge Olszewski did, I looked at David Weiss' March 31 column for the Wilkes-Barre Times Leader, "Unusual sentence not judge’s first." Weiss seems to think that the 'learn English' requirement is a natural outgrowth of earlier sentences where Olszewski has required kids to go back to school as a condition of probation. He writes about an early about a sentence Olszewski imposed in 2001:

That’s when he gave eighth-grade dropout Joshua Gyle, then 17, a chance to stay out of jail on a theft charge if he went to go back to school and graduated high school.

If Gyle didn’t make it, that would be a violation of his probation and Olszewski would re-sentence Gyle to prison.

Gyle was thrilled for the chance.

He thanked the judge.

Then he failed miserably.

Two years later, at 19 years old, Gyle appeared before Olszewski, a Luzerne County Court of Common Pleas judge, after getting arrested and failing to go to school.

Olszewski held his promise and sent Gyle to state prison for two and a half to five years.

“I bent over backwards to help you,” an upset Olszewski said at the time. “And you know what you did? You thumbed your nose at me.”

But, Weiss writes, sometimes the sentences have proved successful, too.

Initially, when Olszewski required offenders to get and hold down a job as a condition of probation, he was told that no jobs could be found. So, according to Weiss, Olzewski and a member of his staff, Ron Zukosky, started finding defendants jobs. Weiss writes:

The judge once touted having a 100 percent employment rate.

“The problem here is most criminal defendants that come before me aren’t employed,” he said in a 2004 interview.

Having a job, he has said, allows defendants to gain income and keeps them occupied, preventing them from having time to commit additional crimes.

Finding a probationer a job seems above and beyond the call of duty; it surely is analogous to (and perhaps more helpful in an individual case than) required enrollment in a vocational program. But the additional wrinkle in this case is that the Pennsylvania judge has also imposed a requirement that these particular defendants learn English. The Tribune notes that Judge Olszewski says this requirement wasn't imposed as punishment; it was added so that the defendants could, quoting the judge, "get a better education, [get] a better job. Period."

At least one of the defendants' lawyers didn't seem to be outraged by the language requirement. From the Tribune article:

Ferris Webby, the attorney representing Guzman-Mateo, Thursday called Olszewski's ruling unusual. But he said he believes the judge's directive to learn English was intended to help the men best meet the conditions of their parole, which includes obtaining their GEDs, and staying away from drugs and alcohol.

"He saw how tough it was for them to communicate on a very serious issue in a courtroom on a very serious charge," Webby said.

According to the Tribune article, Webby was concerned about how his client's progress in English will be measured. Will there be a test at the end of the probationary period? What will be on the test? Presumably, and this is strictly my assumption, Judge Olszewski has some sort of conversational ability in mind as a standard. Anything more than that would be unrealistic and unfair.

There are degrees of fluency. Although, as I've mentioned, I don't handle criminal work, in the course of my career I have had many occasions to recommend that witnesses use the services of a translator for court appearances or depositions. I've done this even though, many times, these were people who were capable of conversing comfortably in English. They could ask for and follow directions. They could shop. They could hold down a job. However, as far as I'm concerned, testifying in court or in a deposition requires a greater degree of linguistic precision than polite conversation. A witness who gets counsel's questions translated should be more at ease and less likely to inadvertently say something untrue. (Witnesses have not always heeded my advice -- and translations have sometimes been far from perfect -- but those are war stories for a different day.)