How to Put a Price on Life?
BOSTON - When Kenneth Feinberg was appointed by then-U.S. Attorney Gen. John Ashcroft to administer the federal 9/11 Victim Compensation Fund, one question tormented him: How to put a price tag on a life?
The statute Congress enacted creating the fund was brief and cryptic, offering no guidelines on how to divide $7 billion of public money among victims' families and survivors.
''Anybody who lost a loved one in the 9/11 attacks or was physically injured could, if they wanted to, voluntarily give up their right to litigate and come into an unprecedented generous program funded completely by public money,'' said Feinberg. ''One person was to be responsible for the design, implementation and administration of the program, and the attorney general selected me.''
Feinberg, a Brockton native and Washington, D.C.-based lawyer, spoke about his experiences as special master of the compensation fund at an event organized by the University of Massachusetts Club to commemorate the fifth anniversary of Sept. 11.
Feinberg, a 1967 graduate of the university's Amherst campus, has handled complex public legal disputes, including compensation for victims of Agent Orange, the herbicide used during the Vietnam War.
The Sept. 11 fund distributed money to more than 97 percent of all eligible families (about 5,300 people) over three years. The average award for a death claim was $2 million. The average award for a physical injury claim was $400,000. Feinberg, who worked pro bono, called it an ''unprecedented success.''
''Only 40 people decided to litigate rather than come under the fund,'' he said.
The going was tough. The statute specified that compensation should be based on each victim's expected lifetime earnings. Feinberg found himself explaining to family members why ''the stockbroker and the banker get more than the waiter and the busboy.''
He recounted how a firefighter's wife came to him and said, ''My husband died a hero. Why am I getting a million dollars less than the bond trader?'' Feinberg said he answered these questions with a straightforward statement: ''This is how America works.''
Another emotionally divisive issue was deciding how to compensate for pain and suffering, as mandated by the statute. Feinberg said he settled on a uniform compensation of $250,000 for each death, and $100,000 for each surviving spouse and dependent. ''I am no Solomon, I cannot calibrate different degrees of emotional distress,'' he said.
Feinberg also faced the challenging task of deciding who should get the money. The law did not define who was eligible. Could a fiance, a same-sex partner or the illegitimate child of a victim be entitled to compensation? What about competing claims between siblings and parents
of victims?
Feinberg explained the contesting claims weren't about greed but grief. ''No one was lying,'' he said, referring to instances where different claimants insisted they were closest to the same victim. ''People believed what they wanted to believe to combat their grief.''
In such cases, Feinberg said, he relied on what he called ''subjective discretion - the one thing the law empowered him with. He met individually with 1,500 families. He said he always tried to be fair and just in making these decisions. Sometimes, he reached for the Bible to understand what religious texts said about fairness, or sought counsel with a rabbi.
In 2005, Feinberg put down his experiences in a book, ''What is Life Worth? The Unprecedented Effort to Compensate the Victims of 9/11.'' He suggested the 9/11 fund was unique. ''It was an emotional response by Congress, an aberration, and it is unlikely to be replicated.''
His own role as administrator of the fund has changed him profoundly. Having witnessed the bewilderment, the anger and the sorrow of 9/11 victims, Feinberg said he is now more fatalistic. ''I don't plan more than two weeks in advance,'' he said.
Anupreeta Das reports for the Gazette from the Boston University Statehouse Program