The stiffer the social or legal punishment, the steeper the burden of proof that accusers must climb

From The Cost of Costly Punishment by Megan McArdle. An excellent article articulating how trade-offs are at the heart of the most interesting and challenging decisions. We don't like the choices and yet a choice has to be made.

Separate from the point of the article is the juxtaposition of two different writers discussing the same topic from entirely different vantages. I enjoy Malcolm Gladwell but as I indicated some time ago, you can't trust his writing. He is compelling and writes about interesting issues in a persuasive fashion. But if you step away from the emotional narrative and look at his arguments from a logical perspective and you examine his evidence with a modicum of skepticism, you discover that his gift for writing well is the key variable in his articles; not his actual arguments.

I would view Gladwell as making arguments by infusing selective data and research into a literary narrative. Gladwell sees a putative pattern in the environment and then communicates it artistically.

McArdle on the other hand, also looks for patterns in the data but rather than using pathos, she uses logos to explore the validity and implications of that pattern. She comes up with equally compelling narrative, but for my money, hers, while perhaps less literary, are the more interesting. Particularly because, following the logos, she often arrives at the unpleasant trade-off decisions we seek to avoid and which often get hidden in the weeds of a literary narrative.

Something that law-and-order hawks frequently underestimate is that when you make punishments harsher, they tend to be applied less frequently. Take probation revocation. In theory, once a pattern of probation violations is established, a judge brings the hammer down and sends the offender to jail. In practice, probation violations only get written up when there's quite a pattern of offending--5, 10, even 20 or more violations. Eventually, the probationer commits one violation too many, and their frustrated probation officer requests a revocation.

The problem is that even if there's a pattern, the actual violation that sends them to court is usually fairly trivial: they missed a probation appointment, tested dirty on a drug test, or perhaps got caught drinking a beer. You're asking a judge to send someone to prison for years over . . . what? Time management problems? A fondness for Coors Light? (Cue obvious jokes about American beer.)

In practice, the judge often declines to do so; they send the probationer back to try again. Eventually, that person is probably going to end up in jail--the failure rate of probation is disappointingly high--but it takes a long time. The result is what Mark Kleiman calls "randomized draconianism". Most of the time, when you violate, nothing happens. Only occasionally do we send you to jail. And that's inherent in the system: who imposes a five year prison term for smoking a single joint?

[snip]

But the very seriousness of the crime, and the harshness of the consequences means that society is also going to want to be very, very sure that the people it punishes have actually molested children. Nor is it clear to me that this is the wrong instinct; it is worth recalling that we systematically and thoroughly ruined the lives of the Amiraults forever, based on clearly confabulated stories from children who were inadvertently coached by irresponsible therapists to accuse the Amiraults of, as the Board of Parole put it in a skeptical review of the case, "extraordinary if not bizarre allegations."

I don't really see any way around this. Some crimes should be viewed as so morally horrific that they cut one off from decent society. But society also needs to be careful about who it cuts off. It is very terrible to let a child molester keep working on new victims. But it is also very terrible to destroy the life of an innocent adult--to brand him with a label that will probably keep him from ever associating with decent people again.

[snip]

In the cases of child molesting and racism, I think we've chosen the right tradeoff. (In the case of probation, I think we haven't, as I'll outline in my book). But we should understand that it's a tradeoff: the stiffer the social or legal punishment, the steeper the burden of proof that accusers must climb.