Relative to their shares in the population, men and blacks are vastly disproportionately executed. From 1930 to 2010, 99% of persons executed were men, and 49% of persons executed were black. In 1970, 49% of the overall population were males and 11% were black. These disproportions in executions have long raised concerns about discrimination in the administration of justice. In his concurring opinion in Furman v. Georgia (1972), Justice Thurgood Marshall declared:
There is also overwhelming evidence that the death penalty is employed against men, and not women. Only 32 women have been executed since 1930, while 3,827 men have met a similar fate. It is difficult to understand why women have received such favored treatment, since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes.
While almost no scholarly work has addressed death-penalty discrimination against men, a large body of scholarly work has found that the death penalty discriminates against blacks.
The formal history of official statistics on executions suggests lack of concern for men’s lives and anti-black prejudice. The first officially published table of national execution statistics was published for 1930 in the U.S. Census Bureau’s series, Prisoners in State and Federal Prisons and Reformatories. While executions by sex were available, executions were not subtotaled by sex. The table included subtotals by race, nativity, and age. Nativity was a common statistical interest in Census tables concerned with the “defectives and delinquents.” That was the heading under which justice-system statistics were reported in the U.S. Statistical Abstract until 1943. The next publication in the Prisoners series (for 1931 and 1932) observed:
There is a live interest in the extent to which convicted persons are committed to prison under sentence of death and also in the number, the race, and the age of prisoners executed. (p. 44)
Did concern about discrimination against blacks and by age drive “live interest” in the race and age of persons executed?
To the contrary, the form in which execution tables appeared in the U.S. Statistical Abstract suggests prejudice. In 1951, the Statistical Abstract began publishing an execution table. That new table showed executions by race (under the categories “white”, “negro”, and “other”) and offense (under the categories “murder”, “rape”, and “other”). The 1953 edition of the Statistical Abstract nested those categories so that statistics showed offense by race. The data showed that “negro” accounted for 90% of the 354 persons executed for rape. Although no person has been executed for rape without murder since 1965, the statistical representation of rape by race was continually reproduced in annual issues of the Statistical Abstract up to and including its 1999 edition. That statistical presentation reflected stereotypes about dangerous black male sexuality while actually describing a very small number of black persons.
While official execution statistics by sex have been available since 1926, the U.S. Statistical Abstract did not publish a table of execution statistics with subtotals by sex until the year 2000. In 1998, two women were executed. That was the largest number of women executed in a single year since 1953, when three women were executed. The subsequent edition of the Statistical Abstract reporting final data for 1998 (the 2000 edition) included the sex of persons executed and dropped the representation of executions for rape by race. Statistically speaking, statistical attention to the sex of persons executed has been recent concern about women executed. That formal statistical history is consistent with a more general lack of public concern about the disposal of men in punishment.