The state of Alabama is on the verge of committing a grossly unconstitutional and irreversible act. It is trying to carry out the execution scheduled for this evening of Ronald Bert Smith, a defendant whose jury voted 7-5 to sentence him to life without parole, but whose sentence was overridden by a judge, who unilaterally decided he should be killed.

How is this possible? In short, despite this year’s United States Supreme Court ruling disallowing it, Alabama continues to allow judges to usurp the jury’s fact-finding role in capital cases.

The United States Supreme Court clearly and unequivocally ruled earlier this year in the case of Hurst v. Florida that the jury, in light of Ring v. Arizona, holds sole authority for finding the aggravating factors necessary to deliver a sentence of death. Until that point, three states—Florida, Delaware, and Alabama—had allowed a judge to exercise judicial override of a jury’s decision in order to execute someone whose life the jury decided to spare. The Florida legislature has since taken steps to get rid of judicial override, and the Delaware state Supreme Court has ruled judicial override unconstitutional.

Alabama, however, has pointedly ignored that ruling since it was issued. Its legislature has taken no steps to end judicial override. Several times this year, the United States Supreme Court has sent death penalty cases back to the Alabama Court of Criminal Appeals for review in light of Hurst v. Florida.

This is perhaps not surprising given that Alabama has the worst track record of the three judicial override states. According to the Equal Justice Initiative:

Alabama is the only state where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 112 times. Although judges have authority to override life or death verdicts, in 91 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Nearly 20 percent of the people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate in the country.

Moreover, EJI points out other factors involved in this high death sentencing rate:

There are considerably fewer obstacles to obtaining a jury verdict of death in Alabama because, unlike in most states with the death penalty, prosecutors in Alabama are not required to obtain a unanimous jury verdict; they can obtain a death verdict with only 10 juror votes for death. Capital juries in Alabama are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.

According to The Marshall Project:

Of the 57 executions in Alabama since the death penalty was reinstated in 1983, 29 involved non-unanimous jury votes, ranging from 11 to 1 for death to 11 to 1 for life, according to an, Marshall Project review of each case.

And now today Ronald Bert Smith, whose jury decided 7-5 on a sentence of life without parole, is scheduled to be executed because the judge in his case took matters into his own hands, usurping even the jury’s fact-finding role.

Smith has petitioned the Supreme Court of the United States for a stay of execution. Alabama, meanwhile, continues in its efforts to maintain its power to disregard the jury and continue state-ordered executions against jurors’ independent and conscientious judgment.