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.
We were most hung up on the first part: we were not convinced that a punishment lottery would be fair. Consequently, our discussion did not really progress to the second part, namely, that our treatment of attempts is fair because it is a punishment lottery.
The idea behind the lottery is that everyone gets equal treatment: they all have the same risk of something bad happening to them or, in other words, lottery tickets of equal value. But most of us did not think that having an equal lottery ticket was the same thing as getting equal treatment.
Gabe proposed an analogy with other rights. The equal right to vote does not mean that everyone gets an equal chance of winning the voting lottery in which, say, 60% of the population is allowed actually to vote. So why should equal punishment be different?
Mollie suggested that punishment might be different if society did not have the resources to punish everyone equally. Voting is not a scarce good, so limiting it by lottery is unfair. But punishment is expensive and so might legitimately be scarce if a society does not want to pay for punishing everyone equally. (You might say that no society is allowed to do that and that punishment must be strictly equal, I should add.) When something is scarce, a lottery might be a legitimate way of distributing it.
Nonetheless, Mollie joined Gabe in thinking that a punishment lottery would be unjust. They both stopped at Lewis’s second “no,” for what it’s worth (p. 61).
There was a significant contingent that did not think equal treatment matters. If rehabilitation is the only legitimate goal of punishment, then the steps taken to rehabilitate one criminal may be different from those taken to rehabilitate a different one. To put it another way, one person’s rehabilitation may take a lot more time than another’s, so the first might be detained for rehabilitative purposes longer than the second even if they both committed the same crime.
Lane, Mollie (again!), Ben, and Taylor all felt the attraction of this view.
If that is right, then the fairness of treating those who merely attempt crimes without successfully completing them is beside the point. They should all be detained for rehabilitative purposes and how long they are detained has to depend on how long it takes to rehabilitate them.