WTC Victims: What's A Life Worth?

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NINA BERMAN/AURORA FOR TIME

Maureen Halvorson, widow of James Halvorson

A train barreled over Joseph Hewins' body on a wintry evening in 1845 in the Massachusetts Berkshires. Hewins had spent the workday shoveling snow off the tracks, only to be killed on his trip back to town when a switchman got distracted. Hewins left behind a wife and three children, who were poor even before his death. His widow sued but lost at every level. Had the train merely chopped off Hewins' leg, the railroad would have paid. But in the perverse logic of that time, when a man died, he took his legal claims with him. And so the thinking went for most of the century, until something unheard of began to happen. The courts started to put a dollar value on a life--after death.

The concept of assigning a price tag to a life has always made people intensely squeamish. After all, isn't it degrading to presume that money can make a family whole again? And what of the disparities? Is a poor man's life worth less than a rich man's? Over the past 100 years, U.S. courts have crafted their answers to these questions. Forensic economists testify on the value of a life every day. They can even tell you the average valuation of an injured knee (about $200,000). But until now, the public at large has not had to reckon with the process and its imperfections. Until the terrorist attacks of Sept. 11 created a small city's worth of grieving families and the government established an unprecedented fund to compensate them, the mathematics of loss was a little-known science. Now the process is on garish display, and it is tempting to avert the eyes.

On the morning of Jan. 18, about 70 family members file into the rows of crimson seats at the Norwalk, Conn., city hall auditorium. They listen quietly to special master Kenneth Feinberg, whom the government has entrusted with dispersing its money to those most affected by the Sept. 11 tragedy. His first job is to persuade them to join the federal Victim Compensation Fund, the country's largest experiment in paying mass victims and their families without placing blame. The effort is being closely watched for the precedents it will set.

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Much has been made of the enormous charity funds raised after the attacks. Donations to those groups do funnel thousands of dollars to the victims' families — in particular, the families of fire fighters and police officers. But overall, the nearly $2 billion in charity money is chump change compared with the cash that will flow out of government coffers. There is no limit to the federal fund, but the tab is likely to be triple the size of the charity pot. And while charity funds are doled out to a vast pool of people, including businesses hurt by the attacks, the government money will go exclusively to the injured and to families of the deceased.

Feinberg, in a black-and-white polka-dot tie, speaks in short, punchy sentences and a loud voice. He has already given the speech 32 times up and down the East Coast. The main thrust: The government, for the first time ever, has agreed to write large checks to victims' families without any litigation. The checks will arrive within four months after a claim is filed--no legal fees, no agonizing 10-year lawsuit. But every award will be based on a cold calculus, much the way courts handle wrongful-death claims.

That means different sums for different families. In a TIME/CNN poll taken last month, 86% said all families should receive the same amount. But that's not how it's going to work.

The calculus has several steps, Feinberg explains. First, the government will estimate how much a victim would have earned over his or her lifetime had the planes never crashed. That means a broker's family will qualify for a vastly higher award than a window washer's family. To estimate this amount, each family was handed an easy-to-read chart on the way into the meeting: Find your loved one's age and income and follow your finger to the magic number. Note that the lifetime earnings have been boosted by a flat $250,000 for "pain and suffering"--noneconomic losses, they are called. Tack on an extra $50,000 in pain and suffering for a spouse and for each child. The charts, while functional, are brutal, crystallizing how readily the legal system commodifies life.

Then — and this is crucial — don't get too excited. That first number may be quite high — in the millions for many. But you must, according to the rules of the fund, subtract all the money you are getting from other sources except charities. A court settlement would not be diminished this way, but this is not a court, Feinberg repeatedly points out. Deduct life insurance, pension, Social Security death benefits and workers' compensation. Now you have the total award the government is offering you for your loss.

The deductions have the effect of equalizing the differences in the awards. Critics have called this Feinberg's "Robin Hood strategy." For many people in the room, the number is now at or close to zero. Feinberg says he will make sure no one gets zero. "Leave it to me," he says. But nowhere will that be written into the rules when they are finalized in mid-February. Likewise, many fiances and gay partners will be at the mercy of Feinberg's discretion in seeking awards. Before finding out exactly what they will get — and the rules are complex — families will have to agree never to sue anyone for the attacks. "Normally, that would be a difficult call," says Feinberg. "Not here. The right to sue in this case is simply not a reasonable alternative."

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