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.
Patrick expressed disagreement about the first part of Lewis’s argument. If two people are equally guilty but get different punishments, that is unfair.
Youhan, on the other hand, stuck up for Lewis. It’s the process or the risk that is equal, not the penalty. She thought that made sense.
Matthew was not crazy about Lewis’s contention that the inequality was due to fortune. Fortune can do that only because of the way we have set things up. Ultimately, it’s on us.
One thing to remember about this is that the lottery in the case at hand treats those who successfully complete their crimes more harshly than those who do not. Many of us get into this problem with two thoughts:
So we got into this mess because we thought there was a sense in which the two should be treated the same and a sense in which they should be treated differently. The line of thinking that Lewis and Youhan are following does have the virtue of accommodating both thoughts and showing how they might be rendered consistent with one another.
On the other hand, I think Patrick and others are right to say that the structure of the argument was supposed to move from the fairness of punishment lotteries in general to the fairness of punishment lotteries in the specific case of mere attempts. So if they have good reason to doubt the fairness of punishment lotteries in general, they can say that the argument does not work as intended.
The second part of Lewis’s argument maintains that our current system works like a lottery. It has three parts.
Matthew and Peter were intrigued by a different way of looking at it. The successful criminal commits a different crime than the unsuccessful one. What you succeed in doing determines what you are guilty of. So even if you and I are equally wicked in our intended actions, if you succeed and I fail, you are more guilty than me. This so-called moral luck plays a big role in our lives: you feel relieved if you luckily just miss someone with your car and you feel terrible if you accidentally hit them. But it is not clear how to make sense of it.
Lewis, David. 1989. “The Punishment That Leaves Something to Chance.” Philosophy & Public Affairs 18 (1): 53–67.