Alabama Court of Criminal Appeals Categorically Bars Review of Racial Bias in Capital Jury Selection

On May 3, 2024, the Alabama Court of Criminal Appeals announced its deci­sion in the case of Christopher Henderson, a death-sen­tenced man who had been tried by an all-white jury in Madison County, Alabama, where the pop­u­la­tion is 24.6% Black. Prosecutors in his cap­i­tal tri­al used peremp­to­ry strikes to remove six of the 10 qual­i­fied Black poten­tial jurors and all remain­ing jurors of col­or. Mr. Henderson’s coun­sel from the Equal Justice Initiative iden­ti­fied evi­dence that the prosecutor’s strikes were racial­ly dis­crim­i­na­to­ry in vio­la­tion of Batson v. Kentucky, which held that exclud­ing a poten­tial juror based on race is unconstitutional.

But in its deci­sion in Henderson v. State, the Alabama Court of Criminal Appeals refused to even con­sid­er the evi­dence of ille­gal racial bias in jury selec­tion, declar­ing instead that this claim was dis­tinct from all oth­er legal claims and would no longer be con­sid­ered if pre­sent­ed as plain error. 

Alabama’s ​“plain error” rule has long pro­vid­ed that, because death penal­ty cas­es require the high­est pos­si­ble lev­el of reli­a­bil­i­ty and scruti­ny, the Alabama Court of Criminal Appeals must address errors or issues raised for the first time on appeal. It applied a high­er stan­dard to claims that were not pre­served at tri­al, but it could not refuse to con­sid­er those claims.

The Henderson court depart­ed from decades of prece­dent when it declared that claims involv­ing racial dis­crim­i­na­tion in jury selec­tion would no longer be reviewed under plain error. The court will still review oth­er claims for plain error if they were not raised at tri­al — but an unpre­served claim of racial bias in the selec­tion of the jury in a death penal­ty case is now the only claim assert­ing a con­sti­tu­tion­al vio­la­tion that is barred from review on appeal.

The rul­ing is believed to be the first time a state court has pro­claimed a bar on review on a sin­gle issue while per­mit­ting review for all other issues.

Plain error review emerged in Alabama in response to seri­ous prob­lems in the state’s indi­gent defense sys­tem, espe­cial­ly in cap­i­tal cas­es. There is no statewide pub­lic defend­er in Alabama and no cap­i­tal defend­er office to rep­re­sent indi­gent defen­dants at tri­al or on direct appeal.

Instead, lawyers from the pri­vate bar are appoint­ed to rep­re­sent poor peo­ple fac­ing the death penal­ty. Until 1999, attor­neys were paid only $40 per hour for in-court work and $20 for out-of-court work, and com­pen­sa­tion for out-of-court work was capped at $1,000. Nearly half of the peo­ple cur­rent­ly on Alabama’s death row were con­vict­ed under this com­pen­sa­tion cap, and indi­gent peo­ple fac­ing the death penal­ty in Alabama con­tin­ue to strug­gle to find ade­quate legal assistance.

In con­trast with lim­its on defense coun­sel, Alabama’s sys­tem puts no lim­its on the num­ber of cap­i­tal mur­der indict­ments a pros­e­cu­tor can seek, result­ing in ram­pant over-charg­ing. At any giv­en time, more than 300 peo­ple are await­ing tri­al for cap­i­tal mur­der in the state, which is more pend­ing cap­i­tal cas­es than in most oth­er Southern states combined.

Under Alabama Rule of Appellate Procedure 45A, known as the ​“plain error” rule, the Alabama Court of Criminal Appeals is required to review claims on appeal, even if there were no objec­tions at tri­al. Rule 45A allowed appel­late attor­neys to iden­ti­fy and cor­rect uncon­sti­tu­tion­al con­duct in cap­i­tal tri­als through­out the state. As a result, many wrong­ful con­vic­tions and ille­gal sen­tences have been brought to light. Mandatory plain error review has been respon­si­ble for near­ly 40% of all rever­sals in Alabama death penalty cases. 

Plain error has been espe­cial­ly impor­tant for address­ing ille­gal racial dis­crim­i­na­tion in jury selec­tion. Alabama has a long his­to­ry of racial bias in its crim­i­nal legal sys­tem. The ear­li­est Supreme Court deci­sions call­ing out the ille­gal exclu­sion of Black peo­ple from juries because of their race came in appeals from the wrong­ful con­vic­tions and death sen­tences of nine Black teenagers wrong­ly charged with rap­ing two white women and con­vict­ed by an all-white jury in Scottsboro, Alabama. The ​“Scottsboro Boys” were inno­cent but false­ly con­vict­ed because — as the Supreme Court found in Norris v. Alabama—Alabama courts would not eval­u­ate evi­dence of racial bias.

Racial bias con­tin­ued to plague jury selec­tion in Alabama, prompt­ing the Supreme Court to address racial­ly dis­crim­i­na­to­ry peremp­to­ry strikes in Swain v. Alabama in 1965. That deci­sion cre­at­ed a legal stan­dard that made it impos­si­ble to prove inten­tion­al dis­crim­i­na­tion even when pros­e­cu­tors exclud­ed every sin­gle African American from the jury, and grow­ing crit­i­cism forced the Court to over­rule it two decades lat­er in Batson, which made racial bias in jury selec­tion reversible error because of the fun­da­men­tal way it under­mines the integri­ty of the legal system.

Many pros­e­cu­tors found ways to avoid the new stan­dard in Batson and have con­tin­ued to rou­tine­ly exclude Black prospec­tive jurors from serv­ing on cap­i­tal tri­al juries in Alabama. In 2010, the Equal Justice Initiative con­duct­ed a com­pre­hen­sive study of racial bias in jury selec­tion and found that Alabama appel­late courts had iden­ti­fied ille­gal, inten­tion­al racial­ly dis­crim­i­na­to­ry jury selec­tion in 25 death penal­ty cas­es, with com­pelling evi­dence of racial­ly biased jury selec­tion in dozens of oth­er death penal­ty cas­es where no relief was granted. 

In 2022, the Alabama Supreme Court, over the objec­tions of sev­er­al jus­tices, changed the rules of court to make plain error review in death penal­ty cas­es dis­cre­tionary rather than manda­to­ry. Since then, the Court of Criminal Appeals con­tin­ued to engage in dis­cre­tionary plain error review until it ruled in Henderson that claims involv­ing racial bias in jury selec­tion — and only those claims — are now barred from review. This rul­ing is trou­bling, giv­en the long his­to­ry of racial bias in the admin­is­tra­tion of the death penal­ty and in Alabama in par­tic­u­lar. This action also sets Alabama apart in its approach to racial bias even as oth­er states are advanc­ing inno­v­a­tive approach­es to iden­ti­fy and elim­i­nate bias in jury selection.