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maximum potential punishment, and thus it is not ‘“the functional equivalent of an element of a greater offense”’ for constitutional purposes. Ring [ v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). See also Jones v. State, 282 Ga. 784, 791, 653 S.E.2d 456 (2007) (noting that statutory aggravating circumstances must be regarded as ‘elements’ for purposes of the United States Constitution but holding that they remain merely sentencing factors in matters affecting only Georgia law).” Fair v. State, 288 Ga. 244, 702 S.E.2d 420 (November 22, 2010). Interim review of defendants’ capital murder prosecution; trial court correctly ruled that challenge to OCGA § 17-10-30(b)(8) (murder of a peace officer engaged in the performance of his duties as an aggravating factor justifying death penalty), contending that sentencing thereunder without a scienter requirement would constitute cruel and unusual punishment, was premature. “[I]t is ‘the sentence actually imposed, not a potentially greater sentence, which must be subjected to this constitutional scrutiny.’ Lambeth v. State, 257 Ga. 15, 16 (354 S.E.2d 144) (1987).” Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (April 16, 2008). Execution by lethal injection, as practiced by the State of Kentucky, does not constitute cruel and unusual punishment. Death row inmates filed declaratory judgment action contending that the three-drug injection protocol used by 30 states, including Kentucky, violates the Eighth Amendment because it creates “an unnecessary risk of pain.” Held, petitioners have failed to carry their burden of proof; but no majority of the Court agrees on a formulation of the appropriate standard for determining when a method of execution is acceptable. Chief Justice Roberts, writing for Kennedy and Alito, reject petitioners’ contention “must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures.” Plurality: “Some risk of pain is inherent in any method of execution – no matter how humane – if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” “Our cases recognize that subjecting individuals to a risk of future harm – not simply actually inflicting pain – can qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be ‘ sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).” “Much of petitioners’ case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative. Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures – a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (‘The wide range of “judgment calls” that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government’).” “Instead, the proffered alternatives must effectively address a ‘substantial risk of serious harm.’ Farmer, supra, at 842, 114 S.Ct. 1970. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” The procedure here can’t be considered “objectively intolerable,” since “it is in fact widely tolerated” by thirty states plus the federal government, while petitioners’ alternative one-drug regimen has never been used (a consensus the plurality calls “probative but not conclusive”). Also, here the petitioners concede that the state’s procedure is painless if implemented correctly, but contend that the procedure allows a high risk of excruciating pain if not performed correctly. Alito largely concurs, adding that “an inmate challenging a method of execution should point to a well-established scientific consensus.” Stevens concurs, based on petitioners’ failure to carry their burden of