The punishment lottery

Notes for May 6

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.

Lewis’s argument comes in two parts. First, he argues that a system that runs a lottery to determine punishments for those convicted of crimes would be fair. Second, he argues that the way our system treats attempted crimes amounts to a punishment lottery: attempting to commit a crime amounts to entering the lottery and whether you succeed or not is the random element that determines whether you get the payoff of punishment. Taken together, this shows that the way our system treats attempted crimes is fair.

Our discussion

As Callum noted, it’s important that the lottery is something that criminals “enter.” It would be obviously unfair to choose two random people off the streets and subject them to a punishment lottery. The only reason why the punishment lottery seems even possibly defensible is that we think those in it have no complaint about being punished.

Joseph thought one virtue of treating successful attempts differently than unsuccessful ones is that it satisfies the victim’s desire for retribution. For whatever reason, we are more angry about actual harm suffered than we are about near misses. (Though Callum rightly pointed out that we typically want some retribution for those who attempt to hurt us even if they fail.)

Syndey noted that Lewis had not argued that it was appropriate or desirable to punish successful attempts more harshly than unsuccessful ones. At most, all he showed is that it would not be unfair to do so. If we had the resources, Sydney thought, we should punish them equally and the only reason we don’t do that is because we don’t want to spend the money.

Key concepts

  1. Why Lewis thinks a punishment lottery might be fair or just.
  2. Why he thinks our system for punishing successful attempts more harshly than unsuccessful ones is a punishment lottery.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2013. It was posted May 6, 2013.
Philosophy of Law