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.