Death penalty numbers.

In today's NYT, Adam Liptak discusses the pending Supreme Court case that challenges the constitutionality of imposing the death penalty on a person who committed his crime when he was less than 18 years old. Under the current law, the youth of the offender is taken into account as a mitigating factor, and the question now is whether there should be an absolute rule. (There is already an absolute rule for those under 16.) In this context, what should the Court make of the fact that it has become rarer and rarer to give the death penalty to someone in this category?

A central issue before the court, which is expected to rule in the next few months, is whether the plummeting number of such death sentences - there were two last year - lends weight to the argument that putting youths on death row amounts to cruel and unusual punishment. Supporters of the juvenile death penalty argue that the small number proves instead that the system works and that juries are making discerning choices on whom to sentence to death, taking due account of the defendants' youth and reserving the ultimate punishment for the worst of the worst.

I'm opposed to the death penalty, but I think the supporters here have the better interpretation of the decreasing number. If the opponents' interpretation were taken seriously, that would also mean that, in general, for all murders, the more strictly courts and juries restrain themselves and reserve the death penalty for the most truly heinous murders, the more they generate evidence that the death penalty is cruel and unusual and therefore unconstitutional. Those who want the death penalty to be available to express the ultimate condemnation of a crime would need to hope to see it imposed more frequently, lest they lose it altogether.