An Alabama inmate on Friday asked the U.S. Supreme Court to stay his upcoming execution to consider whether a judge should have been able to give him a death sentence when the jury recommended life imprisonment.
 
Ronald Bert Smith is scheduled to be executed by lethal injection next Thursday for the 1994 slaying of Huntsville convenience store clerk Casey Wilson. A jury recommended life imprisonment without parole by a 7-5 vote, but a judge sentenced Smith to death.

"Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life," lawyers for Smith wrote in the petition, noting that Florida and Delaware abolished that capability this year.

The petition could put the issue of judicial override before the court.

The U.S. Supreme Court in January struck down Florida's similar sentencing structure because it gave too much power to judges. Justices ruled that "the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death."

Smith's lawyers argued that Alabama's death penalty structure is also unconstitutional because an Alabama jury can recommend a sentence of life without parole, but a judge can override that recommendation and impose a death sentence.