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.
Lewis’s argument falls into two parts. But before he gets to the first part, he takes a step: he assumes that the 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, as Brandon did. If so, you won’t have to worry about the unfairness of the different sentences. Since you think the crimes are different, the fact that the sentences are different won’t bother you.
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 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 lottery tickets with equal odds of winning the lottery.
If you think that what Lewis calls “suffering” is really what the punishment is, then you won’t agree.
Dan thought it was fair. Emily agreed, on the grounds that the people convicted of the crimes know in advance the risks they will run (which would be compatible with unequal sentences, if I understood her correctly). Bryce bought Lewis’s argument that the punishment is the same even though the suffering is different.
Zach, on the other hand, was of the opinion that the suffering is the punishment. Francis noted that being indicted subjects you to risk but we don’t treat that as punishment.
We had some discussion of the fact 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. Riley said he thought that was misleading. What is relevant is the suffering imposed by the state. That is what has to be equal. So the sentence has to be the same even though the way different people experience it does not.
The second part of Lewis’s argument maintains that our current system works like a lottery. It has three parts.
We had some discussion of whether it’s better to describe what I called the “element of chance” (see step 2) as “random” or “probable.” I can’t recall exactly why this was important, but I know that our problems cleared up when we adopted variations on “probability.”
Here are the points that you should know or have an opinion about from today’s class.