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proof, but notes his belief that the death penalty itself is unconstitutional “‘because it is excessive and serves no valid legislative purpose,’” quoting Furman v. Georgia, 408 U.S. 238, 331, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring). Thomas, joined by Scalia, concurs with the plurality’s conclusion, but not its standard: “in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.” Thomas contends that the Eighth Amendment was intended to outlaw modes of execution then in use elsewhere – “burning at the stake, disemboweling, drawing and quartering, beheading, and the like” – “ designed to inflict torture as a way of enhancing a death sentence; they were intended to produce a penalty worse than death, to accomplish something ‘more than the mere extinguishment of life.’ [Cit.]” Ginsburg, writing for Souter, dissents, would remand for hearing using the standard of whether the method of execution “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.” “I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its ‘substantial risk’ test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.” Breyer accepts Ginsburg’s formulation of the standard, but concurs in the plurality’s result finding that petitioners have not met their burden of proof. Accord, O’Kelley v. State , 284 Ga. 758, 670 S.E.2d 388 (November 3, 2008) (no showing that Georgia’s protocol creates “a substantial risk of harm.”); Stinski v. State , 286 Ga. 839, 691 S.E.2d 854 (March 1, 2010); Ledford v. State , 289 Ga. 70, 709 S.E.2d 239 (March 25, 2011). Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (October 2, 2006). “Trying the issues of guilt and sentence before the same jury in bifurcated proceedings was not unconstitutional. Frazier v. State, 257 Ga. 690, 692(4) (362 S.E.2d 351) (1987) (citing Lockhart v. McCree, 476 U.S. 162 (106 S.Ct. 1758, 90 L.Ed.2d 137) (1986)).” Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (June 26, 2006). Five-four majority reverses Kansas Supreme Court, holding “that the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional.” Kansas statute at issue directed capital sentencing jury as follows: “If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 ... exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise the defendant shall be sentenced as provided by law.” Following Walton v. Arizona , 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which upheld a similar Arizona statute. “At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances. A fortiori, Kansas’ death penalty statute, consistent with the Constitution, may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.” The Kansas statute does not run afoul of the Court’s prior death penalty decisions; it “does not create a general presumption in favor of the death penalty in the State of Kansas.” Nor does the Court accept “Marsh’s contention that an equipoise determination reflects juror confusion or inability to decide between life and death, or that a jury may use equipoise as a loophole to shirk its constitutional duty to render a reasoned, moral decision, see California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring), regarding whether death is an appropriate sentence for a particular defendant.” “The Kansas jury instructions clearly inform the jury that a determination that the evidence is in equipoise is a decision for -- not a presumption in favor of -- death. Kansas jurors, presumed to follow their instructions, are made aware that: a determination that mitigators outweigh aggravators is a decision that a life sentence is appropriate; a determination that aggravators outweigh mitigators or a determination that mitigators do not outweigh aggravators -- including a finding that aggravators and mitigators are in balance -- is a decision that death is the appropriate sentence; and an inability to reach a unanimous decision will result in a sentence of life imprisonment.” Souter, in dissent, would hold that the equipoise statute violates Furman v. Georgia , 408 U.S. 238, 309-310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam) (Stewart, J., concurring), prohibiting “legal systems that permit this unique penalty to be … wantonly and … freakishly imposed.” “A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the Court's holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.” Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (February 27, 2006). Habeas court correctly vacated defendant’s death sentence for crimes committed when he was 17 years old, “in light of the recent holding of the Supreme Court of the United States that death sentences for crimes committed by persons under the age of 18 violate the Constitution of the United States. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (‘A majority of States have rejected