Harmless Error and AEDPA: Brecht’s Applicability After Fry
Volume 80, No. 2, Summer 2007
By Joseph J. Langkamer

Built into the United States Constitution is “[t]he Privilege of the Writ of Habeas Corpus,” a mechanism whereby a prisoner may challenge his conviction in federal court “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Following direct review of a prisoner’s claim, a federal court may exercise its habeas corpus power on collateral review, offering the prisoner a final chance to appeal the constitutionality of his conviction. The importance of maintaining this constitutional safeguard against wrongful conviction cannot be contested, although over recent years, concern for abuses of the writ has motivated both Congress and the courts to implement measures designed to curb such perceived exploitation.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA” or “the Act”), which put in place statutory amendments to habeas corpus law and procedure. AEDPA created waves in the legal community for its seemingly harsh restrictions on a prisoner’s ability to obtain federal habeas relief. Amidst AEDPA’s effects on habeas law, a conflict emerged regarding the federal courts’ role in reviewing whether an alleged constitutional error was harmless, thus requiring denial of relief. [FN9] Prior to AEDPA, Brecht v. Abrahamson required federal habeas courts to analyze a constitutional error for harmlessness in terms of whether the error had a “‘substantial and injurious effect or influence in determining the jury’s verdict.”’ Since the passage of § 2254(d)(1) of the Act, however, a federal habeas court may not grant relief unless the state decision was “contrary to, or involved an unreasonable application of, clearly established Federal law.” When a federal court reviews the state court’s determination of harmless error, it is confronted with these two seemingly conflicting standards. Such a predicament created a split amongst the circuits.

This Comment takes up the issue of whether § 2254(d)(1) of AEDPA has displaced Brecht as the correct standard under which federal courts should review harmless error in a habeas corpus petition. Recently, the Supreme Court largely put to rest any contention that Brecht has failed to survive AEDPA’s passage by holding that Brecht applies on federal habeas review regardless of whether a state court performs a harmless error analysis. [FN14] In line with the latest decision, this Comment argues that Brecht has survived AEDPA but further elaborates on how a federal court should actually entertain harmless error review, an analysis that the Court has not yet fully outlined. A revised two-step approach to federal habeas harmless error analysis, based on the test employed by the Fourth, Seventh, Ninth, and Tenth Circuits, is best suited to efficiently integrate both the § 2254(d)(1) standard and Brecht.

Part II of this Comment outlines the major advances in harmless error doctrine and federal habeas law relevant to examining the interplay between AEDPA and federal habeas harmless error review. First, Part II provides a brief historical backdrop of harmless error, tracing the early courts’ reluctance to apply the doctrine to the current practice of reviewing constitutional errors for harmlessness. Next, the focus turns to harmless error as it pertains to federal habeas corpus, examining Brecht and its impact on federal courts’ role in analyzing for harmlessness on habeas review. Then, AEDPA is examined, narrowing in on § 2254(d)(1), the provision that caused debate among the circuits as to the requisite standard for harmless error review. Finally, Part II concludes with a synopsis of recent Supreme Court jurisprudence valuable to resolving the conflict between § 2254(d)(1) and Brecht as well as a discussion of the federal courts’ differing approaches in handling harmless error review.

In Part III, this Comment discusses Brecht’s vitality in post-AEDPA federal habeas corpus law. The argument is comprised of three main assertions. First, the Supreme Court has issued several recent opinions that indicate Brecht has survived § 2254(d)(1). Second, based on Supreme Court guidance, the two-step test applied by several circuits in tackling harmless error on habeas review is best suited to efficiently integrate § 2254(d)(1) with the Brecht standard; nevertheless, the test must be refined in order to comply with Supreme Court jurisprudence. Finally, the closely linked rationale behind Brecht and AEDPA reveal that both standards merely complement one another rather than create conflict.

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