From sympathy to scorn

From the start, Americans responded admirably to the victims of the Sept. 11 attacks, expressing heartfelt sympathy to the injured and the survivors of the dead, donating mountains of emergency supplies, filling charities to overflowing. Congress responded similarly; one its first acts was to create a compensation fund, part of the $15-billion airline bailout package, to spare injured victims and bereaved families the delay and uncertainty of litigation.

That sympathy now has turned to scorn among many. As the rules take shape, many victims have criticized – with considerable validity – the structure of the compensation fund. Victim advocates – including a good number of misinformed politicians – have unfairly criticized Kenneth Feinberg, the volunteer special master of the fund, for crafting rules that allegedly are either too stingy or too generous. Some Americans – led by irresponsible media commentators – are lashing out at the victims, accusing them of turning grief to greed.

Congress created the fund in the dark days when all Americans needed signs of unity and purpose. It shields the airlines, and the economy itself, from ruinous lawsuits at an especially fragile time. It provides financial relief to victims in a way that tries to be comforting as it also tries to conform to accepted actuarial principles that determine the value of a life. The complexity is further complicated by the fund’s unprecedented nature – never before, not after the first World Trade Center bombing, Oklahoma City, the Africa embassies or any other such attack, has Congress acted to so compensate civilian victims.

The victims’ complaints are understandable. The fund essentially is a government buyout of their right to sue the airlines, the airports or any other related entity, yet the guidelines Congress wrote into the law are inconsistent with that intent. A jury in a personal injury case would be instructed, for example, to disregard the amount of life insurance or employer death benefits available to survivors, yet here Congress ordered such deductions. Congress also ordered presumptive awards; individual awards based upon each victim’s prospective lifetime earning power that include such factors as age, occupation, level of education, sex and race – a provision that seems in direct conflict with civil rights law.

Within that confusing framework, Mr. Feinberg has tried to make rules that will determine individual payments. His goal has been to see that every victim receives something, that those at the top of the earnings ladder don’t get outrageously high awards, that the rules give him the flexibility to address individual circumstances. With the final rules due out on Feb. 10, Mr. Feinberg recently tried to give a rough idea of how it would work and came out with

a figure of $1.6 million as the average payment. The public backlash has been astonishingly ugly – victims now say they’re being inundated by accusatory phone calls and e-mails.

After Sept. 11, President Bush rallied the country and the world, his words expressed the anger and sorrow felt by all and gave people everywhere the courage to meet the challenge ahead. A few words now on not blaming victims and on understanding this difficult job are in order. They might even sink in with those misinformed politicians and irresponsible commentators.