Lewis on criminal attempts Notes for April 26

Main points

We punish successful attempts more severely than we punish failed attempts. Lewis worries that this might be unfair on the grounds that it involves giving different punishments to equally culpable people. His article gives an argument for the conclusion that our practices are fair, despite appearances. However, Lewis himself seemed only partly convinced by the argument.

Alternative reasons

We began by discussing alternative reasons for punishing successful attempts more severely than unsuccessful ones. For example, one reason we considered was that punishing unsuccessful attempts would cause potential criminals to do more to ensure that their crimes are actually successful: if they’re going to be punished either way, they might as well get the satisfaction of completing their crimes. Another reason had to do with evidence: generally speaking, those who are successful are more motivated than those who are not, so success is evidence of bad motivation.

It seems to me that Lewis was right to say that these and other rationalizations do not fully address the problem. I doubt that many people who attempt to commit crimes think of themselves as merely attempting. What they’re attempting to do is to succeed, even with our current system of punishment. And I think that the evidentiary value of success is only partial for the reasons that Lewis gave.

Roslyn suggested one way around the problem that we did not fully discuss: strict liability for criminal violations, such that only successful attempts count as crimes. This would eliminate the problem because unsuccessful attempts would not be crimes and we would not need to worry about finding evidence of intention or other internal states. The chief disadvantage was hinted at last time: it threatens the distinction between mistakes and intentional crimes. Perhaps that problem can be overcome or, perhaps, it’s a cost worth bearing. In any event, we didn’t give this a full hearing.

Is the lottery fair?

Lewis breaks the problem into two parts. In the first part, he argues that a penal lottery would be fair. A penal lottery is a system in which people convicted of crimes would go through a lottery to determine whether they are punished (or, in impure cases, how much they will be punished). In the second part, he argues that the distinction between successful and unsuccessful attempts is a penal lottery, although admittedly one that is poorly understood.

The first part is the most difficult. There are two things that can be said for it. First, the lottery is a way of treating equally guilty people equally: it subjects them to equal risks of harm. Second, those who lose the lottery and get the harsher punishment cannot complain about unfairness since their choices put them in the lottery (Elin made this point particularly well, I thought). As Alex noted, it would be like complaining that the real lottery arbitrarily selects winners. Those who elect to play the lottery agree that they want to pay for an arbitrary chance at winning.

Is the first point satisfying to those who feel the lottery is unfair? Jamie wasn’t satisfied (at least, at first). Lewis also seemed uneasy.

Jamie also raised an important question about the second point. Would we say that criminals have no complaint about cruel punishment on the grounds that they chose to put themselves at risk of receiving it? Elin rightly pointed out that this is not what Lewis was considering; he was only considering punishments that were otherwise acceptable. But it’s legitimate to ask why the criminals’ choices deprive them of a complaint about fairness but not a complaint about cruelty or vice versa.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted April 26, 2010.
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