Justice Marshall of the Supreme Court of the United States offered these words in Estelle v Gamble:
"The history of the constitutional prohibition of cruel and unusual punishments has been recounted at length in prior opinions of the Court and need not be repeated here. It suffices to note that the primary concern of the drafters was to proscribe tortures and other barbarous methods of punishment. Accordingly, this Court first applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. It is safe to affirm that punishments of torture and all others in the same line of unnecessary cruelty, are forbidden by that amendment. Punishments are cruel when they involve torture or a lingering death.
"Our more recent cases, however, have held that the (Eighth) Amendment proscribes more than physically barbarous punishments. The Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society or which involve the unnecessary and wanton infliction of pain."
In Whitbey v Albers, Madam Justice Sandra O'Connor delivered the opinion of the Supreme Court of United States:
"The language of the Eighth Amendment, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted, manifests an intention to limit the power of those entrusted with the criminal-law function of government. The cruel and unusual punishments clause was designed to protect those convicted of crimes, and consequently the clause applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.
"An express intent to inflict unnecessary pain is not required. Deliberate indifference to a prisoner's serious medical needs is cruel and unusual punishment, and harsh conditions of confinement may constitute cruel and unusual punishment unless such conditions are part of the penalty that criminal offenders pay for their offenses against society.
"Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however.After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety.... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the cruel and unusual punishments clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense."
In Canada, §12 of the Charter of Rights and Freedoms:
"Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."
Canada does not have the death penalty, but the cruel and unusual punishment criteria applies in sentencing issues, the treatment of incarcerated persons, and immigration cases. In R. v Ferguson, Chief Justice McLachlin of the Supreme Court of Canada wrote:
"The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable."