Jose P.

Chaparro
24.235 – Philosophy of Law

Do you think it is appropriate to punish criminal attempts more severely if they succeed than if they

fail (or to punish one of two acts more severely than the other if it had more harmful

consequences), even if the difference between success and failure (or the difference in harms

caused) seems to be purely a matter of luck? Why or why not? As part of your argument consider

and evaluate

a. Lewis’ (somewhat half‐hearted) defense of differential punishment by appeal to the notion of a

punishment lottery

Do you think Lewis’ argument succeeds in establishing the justice of differential punishment for

successful and unsuccessful crimes? Do you think there is a better way of justifying our practice of

differential punishment? Or do you think it is ultimately unjustifiable?

The question of 'differential punishment' arises from either an oversight or a strong denial of

consequentialism. Under either of these conditions, the difference in punishment between the

successful and unsuccessful crimes is a bit of a puzzle. Equally wicked agents are apparently treated

differently. Only luck separates the outcomes of the attempts, and their equal wickedness would

intuitively deserve the same punishment. Lewis argues that our current system, which in his view has

differential punishment as a feature, is a penal lottery and that a penal lottery is arguably fair

despite the contradicting intuitions above. There is some merit to the argument that a penal lottery

may be fair. However, the equality of the agents is the biggest gap in this argument. The fact is

crime is appropriately distinguished from unfulfilled criminal attempts. Our system is not a penal

lottery, and a penal lottery is not ideally fair, though there might be reasons to use one.

The similarity between the successful and unsuccessful criminal attempt is significant. I will

1
 Jose P. Chaparro
24.235 – Philosophy of Law

argue that they are not equal after I recap Lewis' paper, but first show how / why one could think

they might be. Lewis chooses an example of murder – two shooters equal in relevant ways attempt

to kill a man, and purely by chance one misses and one hits. Relevant ways would include things

like ability, motives, planning, etc. We can fill in the details of the example to make all things but

the success equal. For example, at the moment they fire their respective shots, their target slips (or

doesn't) out of range entirely by chance. The agents are “equally wicked in their desires” and

“equally uninhibited” and “their conduct was equally dangerous” since “they inflicted equal risks of

death.” We want to deter the behavior they both engage in. Our safety is benefited equally by

defending ourselves against either agent. “So how does their different luck in hitting or missing

make any difference to considerations of desert, expression, deterrence, or defense?” Lewis asks.

Clearly in matters of defense and deterrence we wish to address all serious attempts, not just the

successful ones. As far as expression and desert, I believe the difference might not be so elusive.

The responses Lewis considers to the puzzle, before proposing his own, are not particularly

convincing. The most relevant are the idea of “moral luck” and some utilitarian perspectives. The

utilitarian perspectives appeal to principles of general happiness or safety, which do not seem to

always have regard for justice. Until a deeper connection between these former principles and

justice may be discovered, the pursuit of them cannot necessarily be considered the pursuit of

justice. Moral luck, as conceived of in his paper, refers to the chance accidents that forge an

agent's character. There is in every agent's life chance occurrences that can turn them towards good

or wicked spirits. The implications of chance influences on morality are many, and could range

from superficial issues to the unraveling of morality all together. This is a deep issue, but it may be

2
 Jose P. Chaparro
24.235 – Philosophy of Law

discounted if we demand uncanny similarity in the moral luck of the agents up to their attempt. If

they are both struck by moral luck in the same way up to the luck of their final shot, then we would

seem to be placed in the same dilemma again, no closer to a solution.

Supposing we accept this problematic state of affairs, two equally wicked that are punished

differently, Lewis' penal lottery might be a plausible explanation. A penal lottery is a system of

punishment that has an element of chance. Two agents that are considered equally wicked by such

a system are given a lottery, a game of chance, that will determine their punishment. Their lottery

can admit of degrees, so that there may be a chance of no punishment, moderate punishments, or

heaviest punishment. There is a sense of justice in this chance at punishment. Just as the wicked

agents have put another at risk, so the penal system puts them at risk of punishment. Furthermore, if

the lottery is not a game, but as Lewis would argue, the very same criminal event's the risk, then they

are punished by the very risk they have perpetrated. It ties the crime to the punishment and

acknowledges the risk in both as the same, in the case of our system.

If two people, equally wicked, were to be punished differently, we would be struck by a sense

of injustice. If two men, equal in relevant ways, killed a person together or an equivalent victim

each, it would be very unusual to have different punishments for them. Having committed the same

crime, we should expect the same response. What sense would there be in adding chance to our

system of punishment? We can grant that there is some equality in the treatment of the guilty by

equal chance at punishment. But why add chance at all? If two are just as guilty, they deserve the

same fate through and through. Unless we could not punish both, there is no reason to institute a

penal lottery. Furthermore there is a peculiarity in Lewis' proposal that our current system uses the

3
 Jose P. Chaparro
24.235 – Philosophy of Law

very crime as the chance event that determines punishment. We can agree that in the examples

we're concerned with there is chance involved in the success of the crime. Using that chance event

itself ensures that the amount of risk inflicted by the criminal is the same risk inflicted back on them,

lex talionis. But by using the very same event, rather than an exact re-enactment, risk is not really

punished with risk. Only the successful crimes are punished heavily, while only the unsuccessful are

punished lightly. What should be chance in the penal lottery system is merely the copied results of

the chance event that differentiated the criminals earlier. The risk is no longer impartial and fair, but

matches a judgment of difference between the successful and unsuccessful attempts.

The difference between the successful and the unsuccessful is the key to unraveling the

puzzle of 'differential punishment'. When we realize that two agents are similar in so many respects,

but they are punished differently just based on the success of their criminal attempts, we should try

to explain it. But before we even attempt to imagine lotteries or reasons to punish the same crime

differently, we should look at the difference of success. In the case of the shooters they are indeed

very similar, wicked and prepared and dangerous, but by chance one kills a person, while the other

does not. A victim is dead due to one shooter, while the other has no such effect. The difference

becomes that between a murderer and a person who tried and might murder, but has not. With the

deed done, the murderer has taken another's life, stolen their potential. The balance of justice has

been disturbed by one and not the other. This is the reason we punish. When people break laws,

steal, harm, etc. we choose to punish them. The actual consequences of crimes, as in this case the

shooting murder, are what we want to prevent, what we abhor, and what we want to make a

criminal pay for. It is not unreasonable that we would punish those who attempt to harm and fail

4
 Jose P. Chaparro
24.235 – Philosophy of Law

differently. They have not managed to hurt in the ways we disapprove of, so we wouldn't punish in

the same way. They have not done the same thing. Still, we want to punish the effort, and the risk of

the harm we abhor. We will punish the failed attempts too, just not as much as if they had actually

reached their terrible conclusions.

Part of the appeal of the puzzle is also the fact that there is luck, mere chance, in the

difference between murder and attempted murder. Luck makes one shooter a killer. The trick of the

puzzle is to make it appear that the luck lies with the punishment or our system of justice. We are

not flipping a coin between the shooters, to make a killer and a failed, wicked, dangerous person.

The actual success of a shooter makes him more wicked. They have actually taken the life of a

person, and that person from their family or community. Those who do harm are more wicked are

those who don't. The luck that separates the shooters might seem unfair when we try to paint them

with the same brush. Their motives, reasons, and dangerous behavior is indeed the same. But luck

makes one's shooting worse than the other. They are a worse person for it. All that remains is to

make peace with chance. We don't punish the same crime differently by chance. We punish

different crimes and these crimes are different by chance. By the time the shooters are brought to

judgment they are different, by chance, but we don't introduce chance into our penal system. Some

might still feel that it is unfair that mere chance differentiates the shooters thus. This is also a

mistake. Only judgment can be fair or unfair, but the chance events that shape our world are

impartial. We may bemoan bad luck, like we praise good luck, and we may even wish to help the

unlucky – but this is sympathy, not justice.