Legal Writing Assignment

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              The United States Constitution, ratified in 1788, contains this in its Preamble: “We the People of the United States, in Order to form a more perfect Union, establish justice . . . promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Amendment VIII (1791) guaranteed, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment XIV (1868) reinforced these guarantees to “All persons born or naturalized in the United States.”

              The evolving nature of these standards of decency, as analyzed and phrased regarding cruel and unusual punishment, first appeared in two U.S. Supreme Court cases. Justice Joseph McKenna in Weems v. United States, 217 U.S. 349 (1910) argued the Eighth Amendment’s interpretation should reflect society’s progression in its standards of decency. Chief Justice Earl Warren in Trop v. Dulles, 356 U.S. 86 (1958) phrased the concept as “evolving standards of decency that mark the progress of a maturing society.”

              How do we–in 2020– interpret these “evolving standards of decency”? And what are “standards of decency,” as viewed by the courts and society?  In Legal Writing, we have thought about our individual interpretations in reading George Orwell’s “A Hanging,” in completing the self-questionnaire on 13 October 2020, and in studying two specific cases:

  1. Gregg v. Georgia, 428 U.S. 153 (1976), affirmation of death penalty with

                                                                                               identified mitigating circumstances

  1. Graham v. Florida, 560 U.S. ___ (2010), question of life for juvenile without patrol


              In those discussions and presentations, we have recognized other selected cases, primarily those Supreme Court decisions on appeals from varied states and defendants. These selected cases are identified to get us started thinking about evolving standards:

  1. Furman v. Georgia, 408 U.S. 238 (1972), violation of death penalty (VIII

                                                          Amendment) if arbitrary and discriminatory trial procedures,

  1. Atkins v. Virginia, 536 U.S. 304 (2002), mental retardation,
  2. Roper v. Simmons, 543 U.S. 551 (2005), age and immaturity,
  3. Panetti v. Quarterman, 551 U.S. 930 (2007), question of competency to understand

                                                                                                            punishment (insanity),

  1. Baze v. Rees, 553 U.S. 35 (2008), question of lethal injection,
  2. Miller v. Alabama, 567 U.S. 460 (2012), mandatory life without chance of parole

                                                                                                  for juvenile,

  1. Hall v. Florida, 572 U.S. ___(2014), intellectual incapacity and innate inability to

                                                                                        understand why for punishment,  



  1.  Bucklew v. Precythe, 883 F. 3rd 1087 (2018), 587 U.S. ___2019 (executed Oct. 2019)

                                                                                                  challenge of individual effect of drug usage,

  1. Unites States v. Montgomery, 635 F.3d 1074 (2019), female murder conviction, and
  2. Lee Boyd Malvo (2020) drops his request for resentencing before the U.S. Supreme

                    Court when Virginia passed legislation creating “possibility of parole for juvenile

                    offenders serving sentences of 20 years to life.”


              Although many have written about “evolving standards of decency,” this essay concerns your conclusions and personal defended views. Cite sources for your evidence: (1)

U.S. Supreme Court and state court decisions carry the heaviest weight. (2) Respected legal

journals carry their weight. (3) Online articles, with respected sources, carry less weight. One research articles, was first published in 2014: “The Progression of ‘Evolving Standards of Decency’ in the  U.S. Supreme Court Decisions.” A second, with varied copyright dates contains definitions: “Evolving Standards of Decency legal definition of Evolving Standards of Decency” [title printed as given online]. A third source contains examples through 2008: “Evolving standards of decency? The Death Penalty in the USA in 2008” [(title printed as given online].  More updated discussions appear in law articles at this prompt: “evolving standards of decency” law articles 2019 and 2020.


              How do you, the individual, analyze and view these “evolving standards of decency”? Is the movement a straight line of human progress, a zigzag line, a possible circular line, a regression line, or an impossible line to determine in a changing society? Are the standards made clear to meet specific circumstances? Are the legal forums–courts, juries, legislatures, and debates–resolving the ambiguities? If reasoning from case to case, we have a process and the doctrine of precedent. Then that rule of law is applied to the next similar case. But this case differs too, and the interpretation gains clarity. This process of applying general rules of law to diverse facts carries an inner dynamic–changing and adapting in evolving.  In addition, the advances and regressions in society–including scientific understanding and insights in neurology, psychiatry, genetics, chemicals, and medicine–contribute to change dynamics. Those points were made to start us thinking. Now, note more specific directions.

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