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.
Jesse challenged the first part of the argument. A punishment lottery gives different punishments to people who are equally deserving. That looks unfair and couldn’t be acceptable to someone who believes the purpose of punishment is retribution.
Lewis’s reply is that the risk of being in the lottery is what is equal. But I thought David had a good point in response: two equally guilty people may face equal risks, but the loser of the lottery will face additional punishment while the winner will not. So the operation of the lottery has to be unequal in the end.
Lewis himself was clearly of two minds about this: the back and forth in the section with the yes-no paragraphs should make that clear enough.
I think we can make some headway, though. Josh C. reminded us about real lotteries. While his point was that the two cases are completely different, I think otherwise. People who lose their money in the lottery have no complaint about fairness or justice. They bought a ticket for the chance of winning big and, when they didn’t, they lost the money they paid for the ticket. By the same token, a criminal who loses the punishment lottery cannot complain that it is unfair that an equally bad criminal won. You run the risk when you attempt to commit a crime.
I think Jesse’s point is best addressed to the people doing the punishing. Is it fair or just of us to hand out unequal sentences like that? Even if those receiving them can’t complain, it might still be the sort of thing we should not do.