Structurally Harmless: Why Brecht Should Apply on Collateral Review of Structural Errors

Jaden M. Lessnick*

Even when a prisoner has overcome all of AEDPA’s requirements and the Supreme Court’s equitable bars to relief, the writ of habeas corpus may issue only as “law and justice” require. The Court has recognized in recent Terms that the habeas statute thus confers on courts discretion to deny relief notwithstanding the satisfactions of the statutory and equitable preconditions. This discretion, the Court has said, is not boundless. A judge may grant the writ only after considering the principles of finality and federalism. Whatever else that includes, the Supreme Court has made clear that a judge must apply Brecht’s harmlessness standard before granting relief.

The Supreme Court, however, has not yet clarified whether courts must apply Brecht to cases involving structural error—i.e., error that is not susceptible to harmlessness review on direct appeal. The lower federal courts continue to forego a Brecht analysis on collateral review when an error is structural.

Those courts are wrong. This Essay explains why cases involving structural error must nevertheless be subject to Brecht’s harmlessness standard on collateral review. In so doing, this Essay explains how Brecht fits into both the historical and modern trajectory of habeas jurisprudence. It further illuminates why applying the structural-error doctrine on collateral review vitiates the principles of finality and state sovereignty that habeas is meant to protect. And it concludes by showing why applying Brecht on collateral review does not undermine the institutional justifications for the structural-error doctrine.

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© 2025 Jaden M. Lessnick. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*J.D. 2023, University of Chicago Law School. Law clerk to Judge Jay S. Bybee, U.S. Court of Appeals for the Ninth Circuit, 2023–24. I am deeply grateful to Judge Bybee, T. Hunter Mason, and the editors of the Notre Dame Law Review Reflection for thoughtful comments, suggestions, and discussions. The views expressed herein are, of course, mine alone.