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2. Problems:
Please write a short (1200--1500 word) paper addressing one of the
following topics:
(1) Consider this proposal:
“Someone should be held legally responsible for a harm if and only if
her action was a necessary condition for the harm’s occurring.”
Is it true? Might it sometimes be appropriate for someone to be held
legally responsible for a harm even if her action was not a necessary
condition for the harm’s occurring – even if, that is, the harm would
have occurred regardless of how she acted? If not, why not? If yes, give
some examples to defend your view. Might it sometimes be inappropriate to
hold someone legally responsible for a harm, even if her action was a
necessary condition of the harm’s occurring – even if, that is, the harm
would not have occurred if she had not acted as she did? If not, why not?
If yes, what distinguishes the cases where the person should be held
legally responsible for the harm for which her action was a necessary
condition from those where she shouldn’t be held legally responsible? Be
sure to explain and illustrate your proposal by applying it to examples,
and defend it against possible objections and counterexamples.
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3. (As a reminder, her are some of the candidate principles of legal
responsibility from the Hart/Honoré reading and class discussion that you
may want to consider:
A person should be held legally responsible for a harm for which her act
was a necessary condition if and only if:
- No other fully voluntary act intervened
- The act’s leading to the harm wasn’t the result of a coincidental event
- The act was morally wrong
- The act was voluntarily performed
If you consider any of these principles in your argument, be sure to
explain what they mean!)
(2) Thomson distinguishes individualized and mere statistical evidence.
Explain what, on Thomson's view, this distinction amounts to: what features
does individualized evidence have that merely statistical evidence lacks?
Consider a minimal pair of cases of individualized v. mere statistical
evidence: in one case, we have individualized evidence that determines that
an accusation has probability n, while in the other case we have mere
statistical evidence that also gives the accusation probability n.
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4. Thomson, like many others, thinks that the evidence in the second case is
an inappropriate (or at least less appropriate) basis for legal decisions.
Explain what you think is the best argument for the claim that
individualized evidence is more valuable than mere statistical evidence. (It
could be an argument discussed in the reading or in class or your own
original argument.) Is this argument ultimately successful? If you think it
is, defend it against an objection. If you think it isn't, explain what you
think is wrong with the argument and assess a response on behalf of the
friend of individualized evidence.
(3) Explain Cushman’s “blame-blocking” hypothesis and why he takes his
experiments to support it. Do you think the experiments support
Cushman’s hypothesis? Why or why not? How else might the data be
explained? Can we learn anything from Cushman’s experiments about
what moral judgments we ought to make? Explain your answer.
(4) 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?
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5. As part of your argument consider and evaluate 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? Be
sure to defend your answer against possible objections.
(5) Why should we punish criminals? And how much should we punish
them? Why? In defending your answer, be sure to consider possible
objections to your view (think about possible direct objections to the
principle of punishment you defend, as well as examples of
particular, possibly hypothetical, cases where the punishment your
principle recommends may seem intuitively objectionable).
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6. Solutions:
The Punishment That Leaves Something to Chance Leaves
Something Out
A Response to “The Punishment That Leaves Something to Chance” by David
Lewis
Introduction
In his paper “The Punishment That Leaves Something to Chance”, David Lewis
looks for a justification for differential punishment. For the purpose of this
paper, I will consider differential punishment to be punishment, or a policy of
punishment, that punishes attempts at criminal acts differently than successful
criminal acts. Lewis argues that the current (American) system of differential
punishment is a “disguised form of a penal lottery”, in which a convicted
criminal’s punishment is determined by chance (Lewis 58). Lewis does not claim
that either a system of punishment based on a lottery or the current system of
differential punishment is just; nor does he claim that either is unjust. He claims
that if and only if a penal lottery is just, is our current system of differential
punishment 1just.
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7. In this paper, I will briefly discuss moral luck and penal lotteries, and
reconstruct Lewis’s argument that there is no relevant difference between a
penal lottery and our current system of punishment. While I am sympathetic
to the similarities Lewis points out, I will argue that there is a significant
difference between a penal lottery and American differential punishment, which
justifies differential punishment but not a punishment lottery.
Moral Luck
It seems unjustified to punish a person based on whether they are lucky or
unlucky. Consider the following situation, where the only relevant difference
between a criminal act being an attempt and being a success has to do with
“luck”. Two agents both shoot a victim at point-blank range. The agents acted
with the same intent, had the same marksmanship, used equally deadly guns,
etc. The only difference is the first agent’s victim is saved by an unlikely,
unrelated act: a bird flies between the criminal and the victim and ends up
absorbing the bullet. This unlikely act seems to be an instance of luck (or lack
thereof) for the criminal agent. Both criminals acted with the same malicious
intent to kill, are equally dangerous or “wicked” and therefore seem to deserve
the same punishment (Lewis 53-54). This raises the question of focus: is
differential punishment justified, and if so, on what grounds?
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8. Punishment Lottery
In this section I will reconstruct Lewis’s concept of a penal lottery. The
severity of the punishment assigned to a convicted criminal is determined by
chance, a lottery, if you will. In a penal system based on a punishment lottery,
instead of definitely punishing a convicted criminal, he or she is only put at
risk of punishment (Lewis 58). He distinguishes between a pure and impure
penal lottery. In a pure penal lottery, any convicted criminal who “wins” the
lottery does not suffer any punishment (Lewis 58). In an impure penal
lottery, the losers and winners of the lottery both suffer, but the loser is subject
to worse punishment (Lewis 58). Lewis points out that a penal system based
on a punishment lottery does not need to specify the mathematical risk of
punishment, so long as it is common knowledge that committing prohibited acts
implies a risk of punishment (Lewis 58).
Iterative Process from Punishment Lottery to American System of
Punishment
Lewis argues that there is no difference in the justness between an impure
penal lottery and our current system of differential punishment (Lewis 63-66) by
iterating through several schemes of punishment, making small changes to the
punishment process in each step. A similar but simplified version of his
argument is presented below
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9. To make the argument less confusing, I use murder as a specific crime for
which a criminal is on trial; this should be acceptable because the justness a
policy of differential punishment should not depend on the crime. It also
should not matter if the lottery is a pure or impure punishment lottery 2, so I
will begin with an impure punishment lottery where the winner of the lottery
is still punished, perhaps significantly, but not as much as the loser of the
lottery.
1. Start with an impure penal lottery. When a person is found guilty of
attempting murder or actual murder, he or she must draw straws to
determine if he or she will receive the more severe punishment for
murder, or the less severe punishment for attempted murder. So that the
punishment fits the crime, proportion the criminal’s chances of more
severe punishment to the risk of death that the criminal brought upon the
victim. This risk shall be determined by the court.
2. Same as (1), but instead of the criminal drawing a straw, use a random
number generator. If the generated number is greater than the risk to
which the criminal subjected the victim, the criminal wins the lottery and is
punished less severely. Note that the generator can generate the number
before or after the trial, though the risk inflicted on the victim is determined
as part of the trial.
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10. 3. Same as (2) but instead of a random number generator, use a simulation
of the actual crime. If the victim in the simulation dies, the criminal loses
the lottery. This removes the requirement that the court must determine
the exact numerical risk of death inflicted on the victim, and must only
determine how the crime happened (Lewis 65).
4. Same as (3), except replace reenactment (the simulation) by enactment,
the actual (prior) act of the crime. Since it is equally just in case (2) to
run the generator before or after the trial, the practical requirement that the
act come before the trial should not make the outcome any less just.
Then, the same “luck” the victim had in regard to being murdered is the
luck the criminal has in regard to being punished more severely; that is,
the criminal’s “chance” of receiving the more severe punishment and the
victim’s chance of dying/risk of death are exactly the same.
Justness of Differential Punishment
Lewis argues that differing luck makes no difference in appeals to
retribution, expression, deterrence or defense (Lewis 54). He claims that
differential punishment is not just on retributive grounds, because the
person who attempted and person who succeeded are equally “wicked”,
and therefore equally deserving of severe punishment (Lewis 54).
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11. By determining someone guilty and giving him or her some punishment (be
it the more or less severe), society is still able to express its distaste with the
criminal’s action. Lewis claims that deterrence is also not a valid justification
because is it desirable to deter all attempts, whether they end up (by chance) to
be successful or unsuccessful (Lewis 54).
Lewis may be correct that all of these justifications for punishment do not
support differentiating between the successful and unsuccessful criminal, but I
believe there is an additional purpose of punishment that justifies differential
punishment. I think that what actually happened matters, not solely a criminal
agent’s intention. This is based on a more consequentialist view. A justification
for punishment that seems to justify differential punishment is an appeal to
reparation – correcting the harm caused by the criminal.
Consider the brakes failing on a new care while driving, and the driver crashes
and is injured. He or she can sue the car manufacturer for his or her suffering,
regardless of whether the manufacturer intended to sell the consumer a defective
product. However, if the brakes failed while teaching someone how to drive in
a parking lot, while the car owner may be able to get the manufacturer to
replace the car or fix the brakes, the car owner cannot sue the manufacturer for
his or her pain and suffering, because there is no real pain or suffering. This
suggests that, in civil cases, we may be able to punish people differently
based on what actually happens as a result of their actions.
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12. I do not see justification for criminal cases to be treated differently. If a
criminal attempts to murder someone and fails, he or she should be punished,
but only for attempted murder. If the criminal actually murders someone, he
or she should receive the punishment for murder. The criminal must correct
the harm he or she caused to the best of his or her ability, and since no one
can raise someone from the dead or turn back time, we punish criminals by
giving them jail (or death) sentences. Both the successful and unsuccessful
criminals are equally detestable, equally “wicked” or wrong, and from the
criminal’s perspective, equally deserving of punishment. However, from the
perspective of the victim’s family or society as a whole, the two criminals are
not seen as deserving the same punishment, because one criminal harmed their
victim and the other did not.
Lewis predicts my objection and includes an argument against justification
based on reparation. He suggests that while it may be advisable to do what
society or the victim’s family wants, that does not justify a different
punishment (Lewis 54). However, I do not think that we punish criminals
because that is what society or particular members of society want. Maybe
they desire such punishment because the punishment is just.
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13. Bibliography
Lewis, David. “The Punishment That Leaves Something to Chance.”
Philosophy and Public Affairs 18.1 (1989): 53-67. JSTOR. Blackwell
Publishing. Web. 16 March 2010. Markovits, Julia. “Handout 15: Lewis, ‘The
Punishment that Leaves Something to Chance’”. Philosophy of Law,
Massachusetts Institute of Technology.
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