Lewis notes that in the current legal system, punishments are determined in part by luck. Consider two people who intend to commit the same crime and perform the same action, such as firing a gun in order to kill someone. One person is successful and commits murder. The other is unsuccessful due to a chance event, such as a sneeze or a bird flying in the path of the bullet. The murderer will be punished more harshly even though the only difference in what the two people did was a matter of luck. Lewis thinks that the current system of punishment can be justified. First, he thinks that lotteries of punishment can be justified. Second, he thinks that our current system is analagous to a penal lottery. Since our system is just like a penal lottery and a penal lottery can be justified, then our current system is justified.
On Tuesday, we discussed the justification step of his argument. Today we will talk about the analogy segment of the argument.
In order to argue that our current legal system is analagous to a penal lottery, Lewis runs through a number of thought experiments. Imagine a case like the one above. In case #1, the risk of penalty for the crime is proportionate to the level of risk that the criminal inflicted upon the victim. For example, if the criminal exposed a victim to a 95% chance of death, the criminal then faces a 95% chance of punishment. Case #2 is the same as #1 except a person is chosen to determine the punishment by chance before the trial and then this person (the public drawer) keeps the result a secret. The only difference is when the punishment is decided. Case #3 is just like Case #2 except the punishment is announced before the trial. Lewis thinks that although we know the outcome before the trial, the trial is still important in order for us to establish the criminal's guilt and also to express the wrongness of the crime. Lewis thinks that #1, #2 and #3 are all equally just. Case #4 is just like #3, except the winner gets a short prison sentence instead of going free. This is an impure lottery because the criminal is punished either way. The criminal has no chance to "win" by being set free. This is supposed to help motivate reasons for the trial itself. Case #5 is just like #4, except instead of subjecting the criminal to a lottery with 95% chance of punishment, we reenact the original crime with the same probability of harm. Whether the reenactment is successful determines whether the criminal will be punished. This reenactment, because it creates the same chances of punishment as a lottery, is as just as a penal lottery. Case #6 is just like #5 except instead of reenacting the crime, we just rely on the information we have about the original crime.
Case #6, where we replace a reenactment of the crime with the actual crime itself, will have great practical advantage over an actual reenactment of the crime. Moreover, this way of deciding punishment is the same as our current practices. In current legal system, we use evidence about the original crime and whether that crime was successful as a way to determine if punishment is deserved. The risk of punishment is proportional to the original risk that the criminal exposed the victim to. Because it was a matter of luck whether the original crime was successful, it is also then a matter of luck whether the original crime is punished and how harshly the criminal is punished.
Lewis thinks the main problem with our current system is that it is confusing because winners and losers in the penal lotter are equally guilty. In an actual penal lottery, both criminals are subject to the same chance of punishment. In our system, which Lewis thinks is a "covert" penal lottery, it is not clear that equally guilty parties are subject to the same risk of punishment. Lewis thinks that in our current system, it is still up to luck whether a person is punished. Luck does not come in at the level of an actual lottery but luck does come into effect during the actual crime itself.
Someone might think that a penal lottery is unable to express ideas about the wrongness of a crime or upholding the rights of the victim. Expressing disapproval and condemnation of crimes requires not just subjecting a criminal to the risk of punishment. Expression requires that the punishment is actually enacted. Someone else might think that anger is not appeased when punishments are actually enacted; this is the view that propitiation is not satisfied by a penal lottery.