dissenting.
Last Term, this Court carefully scrutinized the Florida procedures for imposing the death penalty and concluded that there were sufficient safeguards to insure that the death sentence would not be “wantonly” and “freakishly” imposed. Proffitt v. Florida, 428 U. S. 242 (1976). This case, however, belies that hope. While I continue to believe that the death penalty is unconstitutional in all circumstances, see Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting), and therefore would remand this case for resentencing to a term of life, nevertheless, now that Florida may legally take a life, we must insist that it be in accordance with the standards enunciated by this Court. In this case I am appalled at the extent to which Florida has deviated from the procedures upon which this Court expressly relied. It is not simply that the trial judge, in overriding the jury’s recommendation of life imprisonment, relied on undisclosed portions of the presentence report. Nor is it merely that the Florida Supreme Court affirmed the sentence without discussing the omission and without concern that it did not even have the entire report before it. Obviously that alone is enough to deny due process and require that the death sentence be vacated as the Court now holds. But the blatant disregard exhibited by the courts below for the standards devised to regulate imposition of the death penalty calls into question the very basis for this Court’s approval of that system in Proffitt.
*366In Proffitt v. Florida, supra, this Court gave its approval to the new death penalty statute of Florida, but very carefully spelled out its reasons for doing so. The joint opinion of Justices Stewart, Powell, and Stevens (hereafter joint opinion) noted in particular that “[t]he Florida Supreme Court has stated . . . that ‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ,' Tedder v. State, 322 So. 2d 908, 910 (1975),” 428 U. S., at 249, and that the Florida “statute requires that if the trial court imposes a sentence of death, ‘it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory] mitigating circumstances ... to outweigh the aggravating circumstances.’ [Fla. Stat. Ann.] § 921.141 (3) (Supp. 1976-1977).” Id., at 250. In addition, the joint opinion, concerned that Florida provided no “specific form of review,” found assurance in the fact that
“[s]ince, however, the trial judge must justify the imposition of death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to ‘[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So. 2d 1, 10 (1973).” Id., at 251. (Emphasis added.)
After studying the performance of the Florida Supreme Court in reviewing death cases, this Court satisfied itself that these guarantees were genuine and that “the Florida court has under*367taken responsibly to perform its function of death sentence review with a maximum of rationality and consistency,” id., at 258-259, and “has in effect adopted the type of proportionality review mandated by the Georgia statute” upheld in Gregg v. Georgia, supra. 428 U. S., at 259. The joint opinion placed great emphasis on this factor, reasoning that “because of its statewide jurisdiction, [the Florida Supreme Court] can assure consistency, fairness, and rationality in the evenhanded operation of the state law.” Id., at 259-260.
In the present case, however, the Florida Supreme Court engaged in precisely the “cursory or rubber-stamp review” that the joint opinion in Proffitt trusted would not occur. Id., at 259. The jury, after considering the evidence, recommended a life sentence:
“We, the Jury, have heard evidence, under the sentencing procedure in the above cause, as to whether aggravating circumstances which were so defined in the Court’s charge, existed in the capital offense here involved, and whether sufficient mitigating circumstances are defined in the Court’s charge to outweigh such aggravating circumstances, do find and advise that the mitigating circumstances do outweigh the aggravating circumstances.
“We therefore advise the Court that a life sentence should be imposed herein upon the defendant by the Court.” App. 131.
The judge, however, ignored the jury’s findings. His statutorily required written findings consisted of:
“[T]he undersigned concludes and determines that aggravating circumstances exist, to-wit: The capital felony was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs [sic] the mitigating circumstance, to-wit: none; and based upon the records of such trial and sentencing proceedings makes the following findings of facts, to-wit:
*368“1. That the victim died as a result of especially heinous, atrocious and cruel acts committed by the defendant, the nature and extent of which are reflected by the testimony of Dr. William H. Shutze, District Medical Examiner of the Fifth Judicial Circuit of the State of Florida, as follows: [followed by a list of 11 injuries to the deceased].” Id., at 138-139.
The Florida Supreme Court affirmed with two justices dissenting. The per curiam consisted of a statement of the facts of the murder, a verbatim copy of the trial judge’s “findings,” a conclusion that no new trial was warranted, and the following “analysis”:
“Upon considering all the mitigating and aggravating circumstances and careful review of the entire record in the cause, the trial court imposed the death penalty for the commission of the afore-described atrocious and heinous crime.
“Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.
“It is so ordered.” 313 So. 2d 675 (1975).
From this quotation, which includes the entire legal analysis of the opinion, it is apparent that the State Supreme Court undertook none of the analysis it had previously proclaimed to be its duty. The opinion does not say that the Supreme Court evaluated the propriety of the death sentence. It merely says the trial judge did so. Despite its professed obligation to do so, the Supreme Court thus failed “to determine independently” whether death was the appropriate penalty. The Supreme Court also appears to have done nothing “to guarantee” consistency with other death sentences. Its opinion makes no comparison with the facts in other similar cases. Nor did it consider whether the trial judge was correct in overriding the jury’s recommendation. There was no attempt to ascertain whether the evidence sustaining death was “so clear and convincing that virtually no *369reasonable person could differ,” supra, at 366. Indeed, it is impossible for me to believe that that standard can be met in this case.
As the plurality notes, ante, at 352, there are two mitigating factors that could apply to this case and apparently were found applicable by the jury: “The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance” and “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla. Stat. Ann. §§ 921.141 (6) (b) and (f) (Supp. 1976). The purpose of these two categories is, as Justice Ervin observed in dissent below, “ ‘to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.’ [State v. Dixon, 283 So. 2d 1, 10 (1973)].” 313 So. 2d, at 679.
I agree with Justice Ervin that petitioner is such a person. It is undisputed that he had been drinking virtually the entire day and night prior to the killing. Both court-appointed psychiatrists found that petitioner was an alcoholic and that “had he not been under the influence of alcohol at the time of the alleged crime, he would have been competent, knowing right from wrong and being capable of adhering to the right.” App. 11, 19. Furthermore, his actions after the murder—falling asleep with his wife’s dead body, seeking his mother-in-law’s help the next morning because his wife did not appear to be breathing properly, weeping when he realized she might be dead, and waiting for the police to come with no attempt to escape—are consistent with his being temporarily mentally impaired at the time of the crime. In light of these facts, it is not surprising that the jury found that the mitigating circumstances outweighed the aggravating.
Clearly, this is not a case where the evidence suggesting death is “so clear and convincing that virtually no reasonable person could differ.” Had the Florida Supreme Court exam*370ined the evidence in the manner this Court trusted it would, I have no doubt that the jury recommendation of life imprisonment would have been reinstated. As Justice Ervin observed:
“This was a crime of passion in a marital setting in which the excessive use of alcohol was a material factor resulting in the homicide. As I read our statutes, this type of crime does not merit the death penalty because the discretion exercised to impose that penalty here extends beyond the discretion the statutes repose in governmental officials for such purpose. I do not believe that the statutes contemplate that a crime of this nature is intended to be included in the heinous category warranting the death penalty. A drunken spree in which one of the spouses is killed traditionally has not resulted in the death penalty in this state.” 313 So. 2d, at 679.
In Proffitt, a majority of this Court was led to believe that Florida had established capital-sentencing procedures that would “assure that the death penalty will not be imposed in an arbitrary or capricious manner.” 428 U. S., at 253. This case belies that promise and suggests the need to reconsider that assessment.*
The plurality responds, ante, at 361 n. 12, that it cannot criticize the Florida courts because the decision in petitioner’s case preceded both our decision in Proffitt and the Florida Supreme Court’s' decision in Proffitt and Tedder. It conveniently ignores the fact that petitioner’s case came after several key Florida death penalty cases, most notably State v. Dixon, 283 So. 2d 1 (1973), in which the Florida Supreme Court “guaranteed” that its review would insure similar results in similar cases. Proffitt v. Florida, 428 U. S. 242, 261 (1976), quoting State v. Dixon, supra, at 10.
More significantly, however, the plurality does not so much as question the procedure followed here and does nothing to insure that Florida will not again condemn this man to die in blatant disregard of its own rules. Compliance with Proffitt requires that on remand the trial judge give full consideration to the mitigating circumstances in the case and, if he again *371rejects the jury’s recommendation of life imprisonment, his reasons “ ‘be so clear and convincing that virtually no reasonable person could differ.’ ” 428 U. S., at 249. On review, the Florida Supreme Court must evaluate the facts itself and perform the comparative analysis it failed to do previously. It may be that my Brothers in the majority believe these requirements to be so obvious as not to need mention. Nevertheless, where a man’s life is at stake, such blind faith is just not enough even after the decision in Proffitt.