Philosophy of Law Fall 2019

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 seeks to show that this worry is misplaced because our practice is 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 the sentences 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.

Before the first part

Lewis’s argument falls into two parts. But before he gets to the first part, he asserts that successful and unsuccessful attempts are the same crime and that the people who commit them are equally guilty.

It is possible to disagree with that. If you do so, you won’t have to worry about the unfairness of the different sentences. If you think the crimes are different, the fact that the sentences are different won’t bother you.

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 sentence. 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 sentences depending on how 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 the same odds of winning the lottery.

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

One reason for distinguishing between punishment and suffering is that suffering is never equal. Some people find it more distressing to be in prison than others do, so even people who have the same sentence will experience different suffering.

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.

Maddie found the lottery fishy. What if you reversed the penalties, such that the successful attempter got the lighter penalty and the unsuccessful one got the heavier penalty. That would still be fair because the penalties are assigned by the lotter and the punishment is an equal number of lottery tickets for both the successful and unsuccessful attempters. It felt wrong to her to give the unsuccessful attempter a heavier sentence and so something must be wrong with this line of argument. (Editorial comment by me: clever!)

Chloe said that the most Lewis has shown is that it’s acceptable to use a lottery. But why would we want to set it up like this in the first place? There is no positive story about why we would want to use a lottery. It’s just a defensive point that a lottery isn’t so bad. (Editorial comment by me: also clever! I wonder if the positive story could be something like “it saves resources to do it this way.” But that could be true of lotteries for successful crimes too. It doesn’t explain why the lottery takes place between successful and unsuccessful attempts. As I said, “also clever!”)


We started our discussion by examining what Lewis says about deterrence. He had said that every rationale for punishment applies equally to successful and unsuccessful attempts. This is obviously true for retributivism: both successful and unsuccessful attempters are equally wicked. But why would it be true for consequentialists? After all, if you want to deter people from attempting to commit a crime, you can do so by punishing successful attempts alone. Everyone who attempts means to succeed, after all, so if you want to dissuade them from trying, you only need to attach a penalty to succeeding.

Berto and Caroline found this persuasive. Meghna pointed out that success is often a measure of commitment and not just luck. If so, the successful attempter is worse than the unsuccessful one. Lewis’s treatment of deterrence is on page 55.

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?