Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Quality of Mercy

Why I asked for leniency at the sentencing of the drug dealer who sold my son Max a fatal dose

“In my younger and more vulnerable years my father gave me some advice that I’ve been turning over in my mind ever since. ‘Whenever you feel like criticizing any one,’ he told me, ‘just remember that all the people in this world haven’t had the advantages that you’ve had.’” – F. Scott Fitzgerald, The Great Gatsby

I have not thought often of being a judge, but when I have, I have found the prospect of sentencing someone for a crime daunting. While a guilty verdict shows that society disapproves of an action, it is the sentence that expresses society’s disapproval and gives it life-changing consequence. Other victims may be spared when a wrongdoer is stopped. Prevention. The wrongdoer may learn and reform. Rehabilitation. The anger of a victim’s loved ones may be salved. Retribution. Yet the families of the convicted are certain to suffer in some way. These things I have long known.

So what could I say when I was the victim of a drug crime that took my son’s life? A crime that tore an irreparable wound in me and changed my entire family’s lives forever? How should that criminal be punished?

A few facts of my story, our story, need to be recounted to understand what I said at the sentencing hearing of Beverly Burrell, the heroin dealer who sold my 21-year-old son Max the drug that killed him two months to the day after the birth of his own son.

Beverly Burrell sold Max heroin on September 25, 2015. He died early the next day. It would emerge at trial that another customer of hers, a friend of Max’s, told her of his death. She vehemently denied that her drugs killed Max. Four months later, in January, she sold heroin to Luke Ronnei. He died the following morning. Then three more of her customers died of overdoses in a single month: Dustin Peltier, 31, a former Marine, on April 2; Spencer Johnson, 34, who was living in a Columbia Heights sober house, on April 3; and Nick Petrick, 29, who was found dead in his car in a Costco parking lot on April 15.

Police arrested Ms. Burrell in May 2016, and Mike Freeman’s office eventually charged her with third-degree murder in four of the deaths. The Sherburne County Attorney charged her in Peltier’s death. Ms. Burrell, a 31-year-old African American woman with two children and a dependent mother, had no criminal history before these charges. She stood trial for Max’s and Luke’s deaths in May 2017. Judge Paul Scoggin found her guilty in both. Her court trial in Sherburne County occurred in February 2018 and is now under advisement. The trials in the other two Hennepin County deaths are pending.

Judge Scoggin held one sentencing hearing for Max’s and Luke’s deaths on September 28, 2017. I read to him a statement written by my son Riley, who is now in his third year at Yale.

Max died just two years ago from the moment I write this. I will never forget receiving the phone call from my parents at 2 AM. I knew what it meant before I even answered. It was the first time I ever lost something important. And the void left behind in Max’s place will remain eternally empty: nothing can ever replace a brother. To this day, it still makes me cry. It still makes me angry. It makes me angry because Max was stolen from me. He was stolen from our parents. He was stolen from his son. And he was stolen from this world.

But Max was not stolen from this world by Beverly Burrell. Yes, she sold Max his fatal dose. Had she not, Max likely would have lived longer—he may even be with us today. Yet there are a thousand things that, if changed, may have prolonged Max’s life. Had UnitedHealthcare listened to Max’s doctors and recognized the severity of his opioid use disorder, Max may be with us today. If our society viewed substance use disorder as a disease and not some sort of moral failing that deserves criminal prosecution, Max may be with us today. Had Max been born in Switzerland, where the government administers heroin-assisted treatment to people with opioid use disorders to eliminate overdoses and allow patients to wean off of heroin at their own pace—and yes, almost all do overcome their addiction with time—Max may well be with us today. There are an infinite number of counterfactual statements that, if true, would have changed Max’s fate. But we’re stuck with our reality. And in our reality, Ms. Burrell provided the straw that broke the camel’s back. She ought to be punished for placing the straw, but not for breaking the back….

With Ms. Burrell off the streets, her clients won’t magically quit using—Max never did. Someone else will—rather, someone else already has filled her place as a drug supplier. It’s likely that overdoses in Minnesota will continue to grow, regardless of how many people we lock up…. By criminalizing drugs, we give drug cartels a monopoly where violence replaces the rule of law and products are not screened for purity and safety. Drug use doesn’t magically disappear; it is just transferred to an unregulated black market. This has been proved time and time again—it’s the exact reason why Prohibition failed and the mafia gained wealth and power almost a century ago. The same thing is happening today.

So I urge you to give a lenient sentence—not that concurrent decades long sentences can even be conceptualized as lenient. I urge this not because I have forgiven Ms. Burrell. And not because it’s what Max would have wanted—although it is, I think, what he would have wanted. But because the only way for us to save other people like Max—which is the ultimate goal here, let us not forget—is to recognize that incarceration is not the answer to a public health crisis. Imprisoning Ms. Burrell for 50 years will not save anybody. It will just remove any hope of her rehabilitation, cost tax payers over $2 million—enough to send many people like Max to treatment—and take a mother away from her kids.

Then I read mine: 

“Your Honor,

I want to tell you about my son Max, I want to tell you about Max’s struggles with depression and addiction, and then share my thoughts about responsibility for his death and Ms. Burrell’s sentence.

Max and I were both born on the Wednesday before Thanksgiving 37 years apart. DeeDee and I had our second son, Riley, about three years later. Max was a happy, sweet little boy and grew up to be a happy, sweet big boy. He played baseball, basketball, and football. As a teenager he became a fitness nut. He played the piano with style and expression, especially his favorite Beethoven sonata, Für Elise. Music moved him. He was sensitive and compassionate. He made emotional attachments quickly. He loved to talk with others. He wrote poetry and even wrote a poem for me.

Max’s behavior began to change in the fall of his junior year in high school, starting with a concussion in pre-season football practice. We don’t know all of the whys and wherefores, but Max’s mood changed, school became difficult, and he stopped exercising. Over the rest of his high school days we sought medical and psychological care for Max, and he had periods of real improvement.

In the fall of his senior year he was accepted by his first choice of colleges, but by the time he had graduated, he didn’t want to go. He was depressed, and he was using. [His] and our struggles were just starting.

Max had no appreciation for the miseries he would experience when he first tried heroin. He bitterly regretted it, infecting himself with a deadly disease. He wrote this letter when in detox at Fairview Riverside:

Hi. My name is Max and I am addicted to heroin. Although I have only been addicted to it for 10 months, it has ruined things for me that had taken my whole life to build, such as who I truly am. I have and always will love my family, but if you look at what I have done to them, it wouldn’t seem like it. I have stolen over $10,000 from my parents, mostly my dad. I stole and pawned my mom’s jewelry. And worst of all, I have turned my brother who used to be my best friend away from me with my drug use.

I have just come off a 10-month dope binge and finally feel close to normal without using. I would honestly rather shoot myself with a gun instead of needing to shoot up to feel only normal again. Throughout the 10-month binge I probably stopped getting high by the second month. Even going from smoking to shooting didn’t get me high. This shows I didn’t like getting high – I was just consumed by the drug.

Then he added this note to us:

I am so sorry, Mom, Dad and Riley. Your lives would have been a lot easier without me. I promise I will do everything I can to make you guys glad I’m in your life. I just don’t know what to say. I am writing this my last night of detox at Fairview to try to come clean.

Members of the Ronnei family and members of my family made moving statements, largely pleading for long and consecutive sentences. Judge Scoggin said he agreed with much of what Riley and I said but gave Beverly Burrell the guidelines term of 86 months, and made them consecutive. He observed that Ms. Burrell’s tough upbringing had exposed her to the misery of drug addiction, yet she chose to sell. I respect him and his decision.

As I wait for verdicts in the three pending cases, I ponder how she should be sentenced if convicted again—or again and again. She could easily have sentences running over 30 years. A part of me, the angry part, will think she deserves imprisonment every day of what remains of her life. Another part will grieve for her family and wonder how things might have turned out differently if she had the advantages that my family and I have had. 

Beverly Burrell Hennepin County Sheriff

And then I read last month about the Department of Corrections requesting $63 million to preserve our existing prison facilities, on top of the many millions annually spent in running them. So another part of me thinks that there must be a better way—not just fiscally, but also in a way that reduces overdose deaths—for the state to respond to this issue. Every part of me believes Beverly Burrell deserves criticism but, perhaps, opportunity as well—opportunities that she never had before. I am not a judge, but I do know that her imprisonment will solve little. Prosecutor Thad Tudor said her arrest “hasn’t made a dent in the heroin epidemic we’re facing here in the Twin Cities.”

I also believe change for the better is coming. The class action I described in my victim-impact statement seeks to reform UnitedHealthcare’s policies by requiring it and other health insurance companies to follow the American Society of Addiction Medicine’s (ASAM) level-of-care criteria for addiction treatment. ASAM’s criteria, used by other major health insurers and by many states for Medicaid, is widely recognized as the gold standard. But some insurers are using more restrictive criteria to deny or prematurely end mental health and addiction treatment coverage. The case was tried last fall and a decision is expected in mid-2018. If the plaintiffs win, people with substance use disorders like Max will have a better chance of getting the correct level of care needed to treat their disease.  

Riley interned last summer for the Drug Policy Alliance, which seeks to replace our punitive drug policies with policies that focus instead on reducing the harms associated with this use. This summer he will intern at the Legal Action Center, whose “sole mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas.” These organizations are not alone. Our society is starting to recognize and treat opioid addiction as an illness, and our government is devoting more resources to the crisis, understanding that our focus on supply-side interventions over the past four decades has failed to work. So maybe others with Max’s illness, and their families, will have advantages that Ms. Burrell’s victims did not. Then drug dealers may need to look for other business opportunities.

RALPH STEPHEN TILLITT, the son of a lawyer and a nurse from Alexandria, has practiced civil trial law at Gislason & Hunter LLP since 1985.  He is the proud father of Max and Riley, and adores his grandson.  He is still working to figure other things out.

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