Designing Compensation for Sterilization Victims, Part II

Following up on a post from a few days back on how we could approach the problem of designing a compensation plan for victims of North Carolina's sterilization program, I want to try out an idea.  What's on the table now is $50,000 for every now-living survivor -- that's what the Governor's Task Force is recommending.  There are some obvious advantages to these kinds of payments.  No amount of money will return victims to the position they were in, so we have to settle on some rather arbitrary figure in every case and rather than trying to gauge varying levels of suffering, it makes everyone's life easier to give the same amount.  This may work particularly well where everyone has suffered in pretty much the same way.  That flat approach was used in the compensation of Japanese Americans interned during World War II who survived until 1986.  

There are, however, other compensation schemes.  The 9.11 Victims Compensation Act (also known  -- revealingly -- as the Air Transportation Safety and System Stabilization Act) is one that provided differential amounts -- vastly differential, actually -- based on the lost income of 9.11 victims.  That bothers me in a lot of ways, in that it compensated families differently based on how much their loved ones made.  (Even with that differential, I understand that some of the families of high-earning victims thought that they were under-compensated.)  Without wading too much into a topic that's a distant analogy to this issue, it seems like if you're going to have a compensation program like this and not going to give everyone the same, perhaps some of the differential should be based on how much the survivors were dependent on the deceased.

I have already raised the possibility, however, that there may be some significant differences between the sterilization cases in North Carolina.   That is, that the levels of intrusion on personal autonomy varied -- perhaps dramatically -- in some of these cases.  There are well-documented instances of shameful interference with personal autonomy.  But what I'm less clear on are the "voluntary" cases, where at least some people seem to have sought out state-supported sterilization.  And so that leads to a question, which a friend asked recently, would some kind of program more akin to 9-11 be appropriate here?  Because we do not have a good estimate of the number of still-living victims (and thus are not quite sure what the cost of the program will be) and there are some important (though potentially not resolvable) questions about the level of coercion involved, perhaps we should think about setting aside an appropriate amount of compensation and then have a special master try to make more focused determinations based on whatever records are available.  I'm wondering if something like that might well address the differences between the cases?

The illustration is from the North Carolina Historical Highway Marker Program, on McDowell Street between Jones and Edenton Streets in Raleigh.  What particularly interests me about this marker is they got the story right in a very few number of words -- the program was state-sponsored and some were sterilized involuntarily -- through varying levels of coercion -- and others by "consent."  Though "consent" may often have involved a lot of coercion.  Next time I'm over in Raleigh I'll have to get a picture of that.  And also a picture of the NC Department of Justice, which -- irony of ironies -- now occupies the Old Education Building.  That is the building where the Eugenics Board met.

Comments

[David Levine]

The special master for the 9/11 fund made no attempt to individualize compensation for nonpecuniary losses. He set fixed amounts for the pain and suffering of all of the people who died, as well as fixed sums for the emotional distress of family members. The pecuniary losses were measured by lost income, but with floors and ceilings on the recoverable amounts. Ken Feinberg's book on his experiences as the master administering the fund is well worth reading.

[Alfred Brophy]

All good thoughts, David, and many thanks for joining the conversation.

I wasn't thinking about differentiating between sterilization victims in their non-pecuniary losses. I was thinking about differentiating in terms of the state's coercion.