When it comes to justice and punishment, the basic question is why we are justified in punishing people? Under what circumstances is punishment just?
There are many standard rationales for punishment. Some think that punishment is justified based on retribution. Retribution is the idea that people who break the law deserve to be punished. How much a person deserves to be punished depends on how guilty they are. Not only is punishment appropriate in itself, but it also makes the world a better place when people who do bad things are punished. Some think that punishment is justified by deterrence. Deterrence is the idea that punishment should be used to prevent future crimes from being committed. If lawbreakers are punished, others may be less likely to break the law because they will want to avoid punishment. Another rationale for punishment is expression. Expression is the idea that we must punish people in order to express our disgust and hatred for the crime committed or to affirm the existence of the victim's rights. Others think that propitation is a justification for punishment. Propitation is the notion that we should punish people in order to satisfy the anger and wrath of God, gods, the public or the victim's friends and families.
Current legal practice embraces luck. We punish people more severely when they are successful at their crimes. Even when it is a matter of pure luck that a person is successful at murder, for example, we still punish the lucky successful murderer more than we punish the "unlucky" unsuccessful murderer. Even when there is no difference in effort, intent or dangerousness of crime, we still punish people who are lucky and successful with their crime much more than we punish people who are unlucky and unsuccessful.
Imagine Yi and Eric. Both Yi and Eric aim a loaded gun at an innocent victim and fire their weapons. Eric hits his target while Yi has the bad luck of having a sneeze right when he pulled the trigger. Only Eric is successful at murdering his target. Although both had the same effort and intent to commit the same dangerous crime, Eric will have a less sever punishment merely because of luck. The difference in punishment does not have to do with things that Eric and Yi could control. Although Yi may serve a life sentence and Eric may be out of prison in ten years, the only difference in their crimes is luck. In essence, luck determines the severity if punishment.
Lewis thinks that according to standard rationales, the role of luck in punishment cannot be justified. He says that retribution cannot justify the role of luck in punishment. If punishment is only appropriate because the criminal is guilty, then both Eric and Yi are equally guilty. Since Eric and Yi are equally guilty, they should be punished equally. According to retribution, the influence of luck on punishment cannot be justified. What about deterrence? If we know that we will be punished more severely if we are successful with our crimes, it is unclear whether the role of luck can be justified. If we know that attempted crimes are punished less severely, we may be more likely to try again. Others may be uninfluenced by the role of luck. At best, it is unclear that deterrence can support the role of luck in punishment. It is also unclear that expression can justify the role of luck in punishment. If we punish people less severely when their crimes are unsuccessful, it seems that this will express the idea that we find successful crimes morally worse than unsuccessful crimes. In order to express the idea that attempted crimes are equally as bad, we would have to punish murder and attempted murder the same. Expression cannot support the role of luck in punishment. Then Lewis considers propitation. He says that only propitatation can clearly support the role of luck in punishment. This is because we are only angry when the crimes are actually successful. We are angry when people die but not when they live. So if a person dies because a criminal is lucky, it makes sense that we are more angry at the successful murderer than at the unsuccessful murderer. Only propitation clearly supports the role of luck in punishment.
But just because propitation can support the role of luck in punishment, this does not yet give us a flat-out justification for the role of luck in punishment.
Lewis tries to give a better way to justify the role of luck in punishment in the current legal system: a penal lottery. In other words, Lewis thinks the status quo is justifiable. Lewis has us imagine a lottery of punishment. On the one hand, whether a person is convicted of a crime is based on what crime a person attempted to commit. In other words, a person is convicted because of their motives and efforts to commit a crime. Punishment, on the other hand, is determined by chance, as if by lottery. A pure version of a punishment lottery would be that if you win, you go free and if you lose, you get a full punishment. Our system is more like an impure version of a punishment lottery, which means that if you win, you get a short prison sentence and if you lose, you get the full punishment.
Penal lotteries already exist. For example, imagine that a regiment of soldiers commit mutiny. To punish the regiment, one out of the ten soldiers of punished by death. The person to die is chosen by random chance. A more contemporary version of a penal lottery can be seen in the current prison system. While in prison, a person has the risk of being beaten, raped and assaulted. A person may die while in prison or may catch a lethal sexually transmitted STD. Although two people may be sentenced to 10 years in prison, one person may be punished more severely if he or she is beaten daily while in jail or if he or she catches AIDS. Every person who goes to prison is subject to a penal lottery.
Lewis's main argument has to stages. The first stage is a justification of a penal lottery. The second stage is to show that our current legal practice is analagous to a penal lottery.
Stage 1: Justification. Why is a penal lottery justifiable? A penal lottery is better than a penal system that punishes successful and unsuccessful criminals equally. First, there are practical advantages to having a penal system that is sensitive to luck. For example, it speeds up the system. Once we know a crime has been committed, it's much easier to punish people if we don't try to account for and compensate for luck. Also, it's cheaper to allow a lottery to decide punishments than to just put all the people who attempt crimes in jail. Second, there is expressive value to a penal lottery. If a criminal took a risk when committing a crime, then it is poetic justice that the criminal is subject to risk and chance when their punishment is determined. Whatever risk of harm a criminal subjected her victim to, that criminal deserves the same risk of harm. Third, deterrence may or may not justify a penal lottery. Some people may be less likely to commit crimes if they know that the punishment is decided by a lottery. Others may be more likely to commit crimes if they know that luck will determine their punishment. Fourth, dessert can justify a penal lottery. The idea of dessert is that a person deserves punishment based on how guilty they are. Imagine Eric and Yi again. Both are equally guilty because both have equal effort and intent to commit a crime. A penal lottery will treat them equally because both Eric and Yi will face equal chances of being punished in the penal lottery. Someone might object by saying that they both deserve to suffer equally, but Lewis says that it is not up to us to decide how much a person does suffer. It is up to luck and fortune to determine how much a criminal suffers. Also, some people will suffer more just because they have a melancholy personality. We can only make sure that there is an equal chance of punishment. Based on these four reasons, Lewis thinks he can justify a penal lottery. He notes that even if this justification is not sufficient, he does not see anything wrong with a lottery of punishment.