Tag Archives: Criminal Justice

Federal Trade Commission and Justice Department Move to Strengthen Ties

Agencies Launch Joint Public Inquiry Aimed at Modernizing Merger Guidelines to Better Detect and Prevent Anticompetitive Deals at the Cost of Privacy – January 2022

WASHINGTON – The Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division launched a joint public inquiry aimed at strengthening enforcement against illegal mergers.

According to the FTC, recent evidence indicates that many industries across the economy are becoming more concentrated and less competitive – imperiling choice and economic gains for consumers, workers, entrepreneurs, and small businesses. The agencies claim that these problems are likely to persist or worsen due to an ongoing merger surge that has more than doubled merger filings from 2020 to 2021. To address mounting concerns, the agencies are soliciting public input on ways to modernize federal merger guidelines to better detect and prevent illegal, anticompetitive deals in today’s modern markets.

“Illegal mergers can inflict a host of harms, from higher prices and lower wages to diminished opportunity, reduced innovation, and less resiliency,” said FTC Chair Lina M. Khan. “This inquiry launched by the FTC and DOJ is designed to ensure that our merger guidelines accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals. Hearing from a broad set of market participants, especially those who have experienced first-hand the effects of mergers and acquisitions, will be critical to our efforts.”

“Our country depends on competition to drive progress, innovation, and prosperity,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “We need to understand why so many industries have too few competitors, and to think carefully about how to ensure our merger enforcement tools are fit for purpose in the modern economy.”    

Competition is critical to the success of the economy. It ensures that Americans have the freedom to choose among different suppliers and different employers. When businesses face competition, it spurs them to improve their products, develop new ones, and lower prices. Mergers can reduce choices for consumers, workers, and other businesses, leaving them increasingly dependent on larger and more powerful firms that have purchased greater power to dictate the terms of their deals. To protect competition and prevent increased consolidation, Congress passed a series of antitrust laws and authorized the FTC and the Justice Department to enforce them.

The antitrust laws charge the FTC and the Justice Department with preventing mergers that may substantially lessen competition or tend to create a monopoly. Merger guidelines are frameworks for the analysis of mergers under the antitrust laws. The Justice Department first published merger guidelines in 1968, with the goal of providing transparency into the standards it applied in reviewing mergers. Since then, the agencies have published a number of updates, generally specified by whether the transaction is considered horizontal (within the same market) or vertical (within the same supply chain). Although the guidelines identify some of the competitive harms mergers present, markets may fall outside the frameworks under the current approach.

The public inquiry launched today seeks comments on developments in the modern economy and new evidence of mergers’ effects on competition to inform potential revisions to the guidelines. The agencies encourage the public, including market participants, government entities, economists, attorneys, academics, unions, employees, farmers, workers, businesses, franchisees, and consumers, to share feedback, evidence, and ideas that may inform revisions to the guidelines. Some of the specific areas of inquiry on which the agencies are seeking public input and information include:

  • Purpose and scope of merger review: The agencies seek information on whether the guidelines explain and implement the statutory ban on transactions that “may” substantially lessen competition or tend to create a monopoly, and what harms are contemplated by those standards. The agencies further seek input on whether distinctions between horizontal and vertical transactions reflected in the guidelines should be revisited in light of trends in the modern economy.
  • Presumptions that certain transactions are anticompetitive: The guidelines identify certain market circumstances that justify a presumption of competitive harm based on market concentration. The agencies seek information on whether concentration thresholds should be adjusted to improve the efficiency and effectiveness of enforcement, whether alternative metrics or qualitative factors should also trigger presumptions of competitive harm, and evidence regarding the accuracy of such presumptions.
  • Use of market definition in analyzing competitive effects: The agencies seek input on potential updates to the guidelines’ market definition analysis to better account for non-price competition. They also seek to input on when direct evidence of a transaction’s likely competitive effects, such as evidence of head-to-head competition, may eliminate the need for a separate market definition exercise.
  • Threats to potential and nascent competition: The agencies seek input on potential updates to the guidelines’ discussion of potential and nascent competitors, which may be key sources of innovation and competition.
  • Impact of monopsony power, including in labor markets: The agencies seek input on how to address the issue of buyer power in more detail in the guidelines. Labor markets are a key example of buyer power, and the agencies seek information regarding how the guidelines should analyze labor market effects of mergers.
  • Unique characteristics of digital markets: The agencies seek information on how to account for key areas of the modern economy like digital markets in the guidelines, which often have characteristics like zero-price products, multi-sided markets, and data aggregation that the current guidelines do not address in detail.

The Request for Information is available at: https://www.regulations.gov/docket/FTC-2022-0003/document.

The comment period is open for 60 days. Comments can be submitted to regulations.gov and must be received no later than Monday, March 21, 2022. The information will be used by the agencies to consider updates and revisions to the guidelines. If such revisions are contemplated in light of the evidence received and the agencies’ independent research, the agencies will publish proposed guidelines for public comment.

In a press event, Chair Lina M. Khan gave remarks as did Assistant Attorney General Jonathan Kanter. Commissioners Noah Joshua Phillips and Christine S. Wilson issued a statement.

Editorial Note: The Sentinel is deeply concerned about the possibility of any increased governmental “cooperation” when it represents a high likelihood of individual rights being compromised, especially on such a significant scale, and encourages the Reader to examine the intended operational changes and, if you are concerned as well, visit the Public Comment site at: https://www.ftc.gov/policy/public-comments.

Original source material from this post can be found here.

Trump Considers Tying Criminal Justice Reforms to Border Wall Funding

The FIRST STEP Act might get shoved into an end-of-year spending bill.

There appears to be enough bipartisan backing to pass some modest reforms to federal prison conditions and mandatory minimums. Even the Fox Broadcasting Company has put out a statement of support for the FIRST STEP Act. Yet the bill is still stuck in the Senate, and the future of federal criminal justice reform legislation remains unsettlingly cloudy.

President Donald Trump formally announced his support for the law in November, and it has already passed the House. But Sen. Majority Leader Mitch McConnell (R–Ky.) says it might not get a floor vote until January. McConnell is being pressured by fellow conservatives who back the bill and say they know they have the votes to pass it, but a group of Republicans is apparently trying to remove some “safety valve” provisions that permit judges to deviate from mandatory minimum sentence guidelines in some cases. That safety valve has the potential to reduce the sentences of more than 2,000 defendants a year.

Trump reportedly has a plan to get the law passed. According to Sen. Lindsey Graham (R–S.C.), the president wants to shove the FIRST STEP Act into a year-end must-pass spending bill. Lawmakers just passed a stop-gap bill to continue funding the federal government for a couple more weeks. But that runs out right before Christmas.

Senator Graham tweets:

In other words, Trump is trying to tie the FIRST STEP Act to funding for his border wall. He wants $5 billion to start the wall. Senate Democrats have said that they’re willing to fund $1.6 billion for more border security but that they’re not going to give Trump all the money he wants. And obviously, once the Democrats take over the House they’re not going to give him the funds.

Republican Senators have introduced legislation to give Trump $25 billion for the wall, but that bill has no chance of going anywhere at all.

Trump’s tactic here is not terribly unusual. Year-end “must pass” omnibus spending bills have become a depository for unrelated legislation when congressional leaders are struggling to pull together votes. Some of these bills wouldn’t survive public scrutiny. Back in 2016, Reason.com explored several of the unrelated pieces of legislation that got dropped into a $1.1 trillion spending bill passed before the end of 2015.

So the big question here is whether the two demands can be separated. Could the FIRST STEP Act get tossed in the spending bill even if Democrats refuse any consideration of more border wall spending? And will Trump still support it in that case? If he’s stubborn, could that actually cause politically ambitious Democratic senators like Kamala Harris of California and Elizabeth Warren of Massachusetts to turn against the FIRST STEP Act so they can use it as a bludgeon against Trump?

UPDATE: Sen. Ted Cruz (R-Texas) who had been opposing the FIRST STEP Act (after previously supporting it) says he’s back on board after an amendment was added to “exclude violent offenders from being released early.”

Third Circuit Extends Holding Of Miller v. Alabama To De Facto Life Sentences

April 9th, in United States v. Grant, No. 16-3820, the Third Circuit extended the holding in Miller v. Alabama, 567 U.S. 460 (2012) (holding that only incorrigible juvenile homicide offenders who have no capacity to reform may be sentenced to life in prison without the possibility of parole; otherwise, a non-incorrigible juvenile offender must have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”) to de facto life sentences – that is, a sentence (in years) that meets or exceeds the life expectancy of a juvenile offender. In this case, the sentence was for 65 years, which might make him eligible for release no earlier than at age 72. The court characterized its holding as an “incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders.” The court noted that its holding has been adopted by the Seventh, Ninth, and Tenth Circuits, but acknowledged a contrary holding from the Eighth Circuit.

Supreme Court To Consider Whether Florida Robbery Qualifies As A Violent Felony Under ACCA

This past Monday, the Supreme Court granted certiorari in Stokeling v. United States, No. 17-5554. The question presented is: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.”

The circuits are in conflict on whether “overcoming resistance” in robbery statutes categorically requires “violent force.” The Tenth and Eleventh Circuits have held that two different common law robbery offense offenses, both of which require overcoming “victim resistance,” categorically require violence force, that is, “force capable of causing physical pain or injury to another person,” which is “a substantial degree of force;” the word “violent” connotes “strong physical force.”

In contrast, the Fourth and Ninth Circuits have held that similar offenses (and in the case of the Ninth Circuit, the exact same robbery offense as addressed by the Eleventh Circuit) do not categorically require violent force.

Supreme Court Unanimously Vacates Fifth Circuit Decision Denying Capital Petitioner’s Funding Request

In Ayestas v. Davis, No. 16-6795 (Mar. 21, 2018), the United States Supreme Court unanimously held the Fifth Circuit did not apply the correct legal standard in affirming the denial of a capital habeas petitioner’s request for funds, made pursuant to 18 U.S.C. § 3599(f), to investigate a trial-counsel and initial-state-habeas counsel ineffective assistance of counsel claim.


Ayestas was convicted of murder and sentenced to death in Texas state court. New counsel filed Ayestas’s direct appeal, which was affirmed. A third defense team unsuccessfully pursued state habeas relief, including raising a claim of trial-level ineffective assistance of counsel (IAC), but did not raise a claim that trial-level counsel was ineffective for failing to investigate and present Ayestas’s mental health and drug abuse history at the penalty phase. After Ayestas’s state habeas was denied, a fourth legal team filed a federal petition which did raise the trial-level IAC claim about failure to investigate mental health at penalty phase.  The district court held the claim was procedurally barred because it was not raised in state court. That decision was later vacated by the Supreme Court and remanded for  reconsideration in light of Martinez v. Ryan, 556 U.S. 1 ( ) (holding that an Arizona prisoner seeking federal habeas relief could overcome a procedural default of a trial-level IAC claim by showing that the claim is substantial and that the state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding); see also Trevino v. .Thaler, (applying Martinez to Texas).

On remand, Ayestas filed a motion asking the district court for funding under 18 U.S.C. § 3599(f) to develop his claim that both his trial and his state habeas counsel were ineffective. Section 3599(f) provides, in relevant part, that a district court “may authorize” funding for “investigative, expert, or other services … reasonably necessary for the representation of the defendant” in  capital habeas cases. (emphasis added).   The district court found his claim barred by procedural default.  The Fifth Circuit also rejected the funding request under its precedent, holding that Ayestas had not shown a “substantial need” for investigative or other services.


In an opinion written by Justice Alito, the Supreme Court addressed a threshold jurisdictional issue and held that the district court’s denial of Ayestas’s funding request was a judicial decision subject to appellate review under the standard jurisdictional provisions.  In so holding, the Court rejected the state’s argument that the funding decision was unreviewable because it was non-adversarial and merely administrative.

On the merits, the Court held the Fifth Circuit did not apply the correct legal standard in affirming the denial of  Ayestas’s funding request.  The Court held the Fifth Circuit’s “substantial need” standard was more demanding than “reasonably necessary.”  What’s more, the “substantial need” standard exacerbated the difference by also requiring Ayesta to present “a viable constitutional claim that is not procedurally barred.”  The Court explained that rule is too restrictive after Trevino.  While the Court recognized that district courts have broad discretion in deciding funding requests, it stated: “In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.”  The Court provided further guidance to district courts exercising their funding discretion:

Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.

To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be read to guarantee that an applicant will have enough money to turn over every stone.

The Court also rejected the state’s alternative ground for affirmance—that funding is never “reasonably necessary” where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record, see U.S.C. § 2254(e)(2) —remains open for the Fifth Circuit to consider on remand.

In an important procedural aside, the Supreme Court noted that the Fifth Circuit does not require petitioners to obtain a certificate of appealability (COA) to appeal a district court’s funding determination.  The COA issue was not briefed by parties and the Court found it “unnecessary to resolve the issue.” But taking “no view” of the COA issue, the Court “assume[d] for the sake of argument that the Court of Appeals could not entertain petitioner’s §3599 claim without the issuance of a COA.”  The Court also noted the district court’s ruling was “not only debatable; it was erroneous.”

Sotomayor Concurrence

In Justice Sotomayor’s lentghty concurrence, joined by Justice Ginsburg, she explains that “Ayestas has made a strong showing that he is entitled to § 3559(f) funding.”  About a district court’s discretion in funding determinations, Justice Sotomayor explained:

Exercise of that discretion may be appropriate if there is a showing of gamesmanship or where the State has provided funding for the same investigation services, as Ayestas conceded at argument. Nonetheless, the troubling failures of counsel at both the trial and state postconviction stages of Ayestas’ case are exactly the types of facts that should prompt courts to afford investigatory services to ensure that trial errors that go to a “bedrock principle in our justice system” do not go unaddressed.

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