Georgia’s execution of Troy Davis last week was a poignant reminder of the continued presence of capital punishment in the United States. The Davis execution generated extraordinary interest because of troubling doubts about his guilt. Some observers have already speculated that the Davis case might serve as the spark that could reignite the movement to abolish the death penalty. But lost in some of the attention that the execution has generated is the death penalty’s unmistakable and precipitous decline over the past decade. If the battle has not been won by death penalty opponents, they are much closer to their goal than they realize.

Death sentencing has dropped remarkably over the past fifteen years, making what was already a marginal practice (in terms of the frequency with which murder is actually punished with death) an exceptionally rare one. Whereas over 300 defendants were condemned to die per year in the mid-1990s, the most recent figures show a nationwide average closer to 115 per year—a more than 60 percent decline. Executions, too, have fallen significantly—by about 33 percent if one compares 1997-2003 (about 75 executions nationwide per year) and 2004-2010 (about 50 executions nationwide per year).

As a matter of politics, the momentum is clearly on the side of restriction rather than expansion. The past four years have seen the legislative abolition of capital punishment in New Jersey, New Mexico, and Illinois. Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender). As a matter of law, the death penalty appears more fragile jurisprudentially than at any other time in American history, save the brief period of judicial invalidation in the early 1970s.

Indeed, and in addition to legislative action, several members of the U.S. Supreme Court have expressed deep skepticism about the efforts to ensure reliable and fair administration of the death penalty. Moreover, in its decisions abolishing the death penalty as applied to juveniles, offenders with mental retardation, and offenders convicted of raping children, the Court has found those practices contrary to “evolving standards of decency” based on new gauges of contemporary morality—such as elite and professional opinion, international opinion, and polling data—in addition to legislative decisions and jury verdicts. In the cases involving juveniles and offenders with mental retardation, the Court declared the practices contrary to evolving standards despite the fact that a majority of death penalty states did not (yet) prohibit the challenged practice.

In light of this dramatic decline of the American death penalty in practice, politics, and law, rather than portraying the Davis case as the “spark” that could inspire a new generation of anti-death penalty activism, we perhaps should view the Davis case as additional fuel on a fire that is already burning. The difficult question for opponents is whether and how to focus this renewed energy. On the one hand, the Supreme Court’s new approach to gauging “evolving standards of decency” offers a potentially powerful constitutional litigation strategy. If the trend toward abolition and restriction on the state legislative front continues along its current trajectory, it will become easier for abolitionist litigators to marshal evidence of the death penalty’s domestic decline in support of a constitutional ban—and easier for courts to deem capital punishment an outlier practice that falls outside of an emerging constitutional consensus.