Since high national recidivism rates continue, it may be stated that punishment and treatment, as currently constituted, are ineffective as behavior change or social defense mechanisms. In addition, it is suggested herein that many therapy techniques used for inmates would not be legally allowable if they were regarded as forms of punishment. The Supreme Court has addressed the cruel and unusual punishment issue sparingly and has emphasized the importance of situational factors. This is because cases involving behavior therapy on prisoners under the rubric of treatment, as in 'Nelson v. Heyne' (1972), and 'Knecht v. Gillman' (1973), did not arise until recently. The Court has developed three tests to assist in determining whether a particular punishment transgresses the decency standards of enlightened society. The first test, involving inherently cruel and unusual treatment, makes such behavior thereapy methods of punishment as psychosurgery and Electrical Stimulation of the Brain (ESB) immediately suspect because of their inherent psychological character. In addition, severe forms of aversion therapy would appear to be physically torturous and thus prohibited under eighth amendment scrutiny. The eighth amendment also proscribes punishments disproportionate to the offenses for which they are imposed. In determining whether aversive conditioning or psychosurgery meets the second test of proportionality, a court would balance the relative severity of these punishments against the gravity of the crime. The third test of excessiveness involves an examination into the purposes behind any punishment to ascertain whether the objectives sought are well grounded. If any treatment procedure is found to be ineffective it is per se cruel and unusual under this test, as it fulfills no legitimate purpose. There are circumstances under which the aforementioned therapy techniques would pass constitutional scrutiny yet remain questionable in a moral sense. Footnotes with references are included.