A man awaiting sentencing for killing a Missouri police officer is challenging the constitutionality of a state law that allows judges to hand down the death sentence.

A jury in June convicted 45-year-old Ian McCarthy of first-degree murder in the fatal shooting of Clinton Police Officer Gary Lee Michael Jr. during a 2017 traffic stop. After days of deliberation, the jury informed the judge that it couldn’t decide between the state’s only two sentences for first-degree murder: life in prison without parole, or death.

Missouri and Indiana are the only states that allow judges to sentence people to die.

McCarthy’s attorneys filed a motion last week asking a Jackson County judge to declare the state law unconstitutional and to sentence McCarthy to life in prison. Judge Marco Roldan will consider the motion at the sentencing hearing on Friday.

The motion calls Missouri “a clear outlier” and states that the law violates the Eighth Amendment guarantee against cruel and unusual punishment.

“Unanimous jury agreement is necessary to ensure that death sentences are imposed reliably, on the most culpable defendants, and reflect the judgment of the community,” it states.

Henry County Prosecuting Attorney LaChrisha Gray on Wednesday declined to comment on the constitutional question, but she said she is still seeking the death penalty.

“We will be asking the court to impose that sentence,” Gray said.

Courts have issued varying decisions on whether juries alone should have domain over death sentences.

In 2002, the U.S. Supreme Court overturned the death sentences of at least 150 convicted killers, ruling that juries, and not judges, must make such life-or-death decisions.

But since then, some executions have proceeded despite sentences from the bench. Among those put to death was Missouri inmate Amber McLaughlin, whose execution in January was believed to be the first of a transgender woman in the U.S.

McLaughlin was convicted of first-degree murder for killing a St. Louis-area woman in 2006. A judge sentenced McLaughlin to death after the jury deadlocked on the sentence.

In another case, the Missouri Supreme Court in 2019 upheld the sentence for Craig Wood, who was sentenced to death by a judge for kidnapping, raping and killing a 10-year-old girl in 2014. Wood remains on death row and no execution date has been set.

On Aug. 6, 2017, McCarthy used a high-powered rifle to fatally shoot Michael, 37, during a traffic stop in Clinton, about 75 miles (121 kilometers) southeast of Kansas City. McCarthy was captured two days later in a rural area of Henry County.

The court filing on behalf of McCarthy states that since the jury couldn’t reach unanimous agreement on a sentence, McCarthy should have been given life without parole.