Philosophy of Law Spring 2018

Attempts and Lotteries


We punish successful attempts more severely than we punish failed attempts. Lewis worries that this might be unfair because it involves giving different punishments to equally culpable people. He argues that our practices are fair on the grounds that they are equivalent to a lottery. However, Lewis himself is only partly convinced by this argument.

Lewis’s argument comes in two parts. First, he argues that 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 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 seems to show that our system’s treatment of attempted crimes is fair.

The first part

The first part of Lewis’s argument holds that a lottery to determine punishments would be fair. This is the part that Lewis himself has the least confidence in.

The idea is roughly this. When you are convicted of a crime, you get a ticket in a lottery. Then the lottery is held to determine your punishment. If your ticket matches the number drawn, you get one sentence and if it doesn’t you get another sentence.

On the face of it, a lottery would be unfair. Two people could commit the same crime but receive vastly different punishments depending on hos the lottery turns out.

Lewis thinks that the best case for saying that the lottery would be fair relies on a distinction between punishment and suffering. The punishment is the risk of suffering: getting the lottery ticket. The suffering is what happens when you serve the sentence. If that’s the way you define the term “punishment” then punishments for the same crimes can be equal if those who are convicted of the crimes get lottery tickets with equal odds of winning the lottery.

If you think that what Lewis calls “suffering” is really punishment, then you won’t agree.

The second part

The second part of Lewis’s argument maintains that our current system works like a lottery. It has three parts.

  1. The criminal enters the lottery by attempting to commit a crime: firing a gun, for instance.
  2. The element of chance is what happens between the attempt and the end of the action: it is luck that determines whether the bullet hits its target or not, just as it is luck that determines whether the ball in the roulette wheel lands on black or red.
  3. The punishment follows from the combination of entering the lottery and luck. If you try to shoot someone and unluckily succeed, you get a harsher penalty. If you try to shoot someone and luckily fail, you get a milder penalty.

Our discussion

Our discussion was mostly about the second part. Megan kicked it off by asking us to imagine that the successful criminal, the one who hits her intended victim, is just a better shot than the unsuccessful one, the one who misses.

Molly thought the punishments should be equal. They’re equally bad in their intent. One is just more skilled than the other.

Will said that the person who is more skilled and takes a shot at someone else can be thought of as having bought more lottery tickets. She knows that she is more likely to hit her target than someone who is less skill. By the same token, someone who buys more tickets knows that he is more likely to win the lottery than someone who buys fewer tickets. (Will wasn’t happy with this, though.)

Daisy said that the effort put into training and refining one’s skills could be evidence of greater wickedness. I think that could be so: someone who plots for months and practices to make sure the crime will come off does seem to be more invested in it than someone who acts impulsively. But be careful. Someone might be a better shot because shooting is a hobby and so incidental to her crime.

Then we took a turn and asked whether the consequences should be included in our description of the action. If so, what the successful attempter does is worse than what the unsuccessful attempter does and our problem is dissolved. We can punish the successful attempt more harshly than the unsuccessful attempt without worrying that we are meting out different punishments for similar actions.

Daisy and Adam were inclined to agree with Niyati; Autumn, Camilla, and maybe Molly were not.

One worry about this is that we would be going back to good old “objective intent” (see Lady Eldon). If what you do includes the consequences of your actions, then how do we distinguish between accidents and intentional actions? If a patient dies on the operating table, is the surgeon necessarily guilty of murder?

On the other hand, it’s hard not to include the consequences. I would feel terrible if I ran over the neighbor’s dog while pulling out of the driveway. I would feel relief if I just missed running over the neighbor’s dog while pulling out of the driveway. The difference could have nothing to do with me. It might well just be a matter of luck about whether the dog ran behind the car or not.

Ryan noted that there is one way to include the consequences: good old “eye for an eye” justice. If what we want out of punishment is to achieve a balance, then we could just approach it by looking at what happened and balancing the books by doing something equivalent in response. (Ryan himself was not necessarily advocating this, I should add.)

Main points

Here are the points that you should know or have an opinion about from today’s class.

  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.
  3. Should we include the consequences of an action in saying whether it was better or worse? That is, could it be a matter of luck whether you did the morally good or bad thing?