An Interview with Julius Melnitzer

Julius Melnitzer was called to the bar in London, Ontario, in 1973. He practised as a criminal lawyer until the mid-1980's, handling a number of high-profile cases, then turned to civil litigation and became markedly successful. In February, 1992, he pleaded guilty to a multi-million dollar fraud and was sentenced to 9 years imprisonment. He was then disbarred.

The Criminal Lawyers Association
October 1, 1997

An Interview with Julius Melnitzer

[I spoke to Julius Melnitzer in early December over coffee. Julius Melnitzer was called to the bar in London, Ontario, in 1973. He practised as a criminal lawyer until the mid-1980's, handling a number of high-profile cases, then turned to civil litigation and became markedly successful. In February, 1992, he pleaded guilty to a multi-million dollar fraud and was sentenced to 9 years imprisonment. He was then disbarred. Mr. Melnitzer is now a freelance writer, most familiar to us from his many articles in the Law Times, and also runs a computer and business consulting service. — ed.]

ON CRIME
Q. Mr. Melnitzer, let me ask you this: in general terms, why do you think people commit crimes?

A. Deprivation. I can say, anecdotally — because I have talked to a lot of inmates about what they did and they have given me their files to look at — that 85 percent of the people in jail are there because of some sort of serious deprivation. No parents. Abusive parents. Poverty. Loneliness. There are all kinds of deprivation.

Others are there because of what I call a Hamlet fatal flaw. Generally the flaw is greed. For people like me, of course, there is a perceived not a real deprivation.

ON PUNISHMENT
Q. What do you think is the proper punishment for a white collar criminal?

A. I think it is senseless to send white collar criminals to jail. But society has no choice. Society has to punish me, and I accept that.

Q. What do you propose instead?

A. That's easy. Make me work for ten years, allow me a modest subsistence-level lifestyle, and for ten years every dollar I earn will go to repay the victims of my crimes. Of course one of the practical problems with this is that the white collar criminals would end up running the system….

Q. You suggest there is no need to punish you.

A. Well, society is so mad at me, so mad at me, because one of their own betrayed them. Society can only punish. For them there is no alternative. You can't rehabilitate me, truly rehabilitate me, because that would involve bringing me back into the fold, which is unthinkable.

It's very different for a drug-addled thief. He can never become one of the elite, but he can be permitted to rejoin society in his own way. He doesn't want to be an elite and there is no threat of him doing so. And so society feels better about trying to rehabilitate him. We as a society congratulate ourselves for trying to mend him and for letting him come back in.

But society does not want Julius Melnitzer back. I'm too much of an embarrassment, it's too close to the vest.

Q. So for you jail was just punishment?

A. You know, the worst punishment is not going to jail. It's coming back. It's coming out onto the street having been to jail. The punishment in this sense is eternal. I will never be able to repay my debt, I'll never be able to undo the harm to my victims. There's a certain poetic justice in an eternal punishment like that.

ON REHABILITATION
Q. Let me ask you generally about the principles of sentencing. The common law and now the Code itself talks about general deterrence, specific deterrence, denunciation, protection of society, rehabilitation, and so on. Any thoughts?

A. You cannot teach an animal in captivity how to behave in the wild. You cannot teach a human in captivity how to behave in public. The Julius Melnitzers will likely not be in trouble again. I know how to behave. I abused the skills I had to use to function in society, but coming out I still have those skills. As I said, in my case it is pure punishment. People got hurt, and society had to lash back. I accept that. I'm not complaining about it. If I had the means to repay, if it was twenty thousand instead of twenty million, I might not accept that.

Q. But what about someone who has a record for property offences, break-ins or thefts, has a drinking problem, does these things for money for booze and because he can't get a job because he's a persistent criminal. I have a client who just got rearrested, same thing all over again, and I know some judge is just going to get mad at him and send him to the penitentiary for what is otherwise just a minor smash and grab. You have been in jail; how does jail work for him?

A. Well, he has many problems. Any that are treatable, can't be treated in the penitentiary. I don't think any treatment that is forced on the subject has any chance of being effective. Any therapist will tell you that. You have to make the treatment more palatable to the offender. It can't be made more palatable in jail. We do two paradoxical things. One, we try to treat people in an alienated setting.

Q. Alienated or alienating?

A. Alienated. Animals in captivity. Two, we provide treatment in a setting where the culture is anti-treatment. In a jail, everyone knows that sex offenders get treatment. "Hey you, what are you getting treatment for down there, you must have been diddling someone." So your break-in artist doesn't want treatment, and doesn't get it.

Q. But presumably you need a secure setting to carry out a sentence, including treatment, because of the risk of flight.

A. Oh, escape. You know something, most inmates don't want to escape. Prison is the place where they have a modicum of community. They have peers. They're accepted. They're not that anxious to escape.

Lookit, the biggest problem is that we as a society are not really serious about rehabilitation. Over and over everybody calls our prisons a failure. Prisons demonstrably fail to rehabilitate the inmates. But the prisons survive.

Prisons survive because they are doing exactly what we pretend we don't want them to do. We unspokenly want prisons to punish people. Prisons are extremely successful at punishing people. They do not fail at that. But in a so-called civilized society we don't want to admit that this is why we have prisons.

At our core, we know that shutting anybody up as a solution is barbaric. All we have to do is look at a dog in a pet shop to know this. But it's embarrassing to admit it. So we pretend it's about rehabilitation.

ON MILLHAVEN INSTITUTION
Q. I assume your first exposure to jail was when you were sentenced.

A. Other than visiting clients, that's right.

Q. And after sentencing you would have spent some time in a local detention centre before going to Millhaven [the regional reception unit for Ontario penitentiary inmates]. I gather you then went to Beaver Creek [a minimum security facility] for five months, then were transferred up to medium security at Warkworth for two years, before being paroled.

A. I only spent a few days in the London-Middlesex Detention Centre before being transferred to Millhaven. I was a problem for the jail: I was a high profile inmate and in fact I had represented a number of the guards there, so they didn't want me there.

Q. So you got to Millhaven. Describe that.

A. I was in Millhaven for six weeks. Millhaven is worse than a lousy dog pound. The Humane Society kennel is the Pierre Hotel compared to it.

Q. Well the theory behind Millhaven is it's an intake and classification unit, so every inmate goes there and is treated as maximum security until they can be sorted out.

A. That's a ridiculous theory. Are you saying there is no reason to distinguish a white-collar first-time criminal from a Clifford Olson or Paul Bernardo? That you have to treat them the same until you know better? You already know better going in. All the information needed for classification purposes is already available when the inmate walks into Millhaven.

Q. Alright, but…

A. And furthermore, the harm to the inmates is this. Take a first time youthful offender, somebody convicted of impaired driving causing death — he might get three years for that — or a fraudsman. This is someone who is unlikely to reoffend. But immediately you take them and put them with hardened recidivists.

Q. But only for a few weeks. I believe you went to Beaver Creek within six weeks.

A. But the damage is done.

Q. Are you bitter about having to go to Millhaven?

A. No. I'm not speaking here about myself; I'm speaking out of concern for first time offenders, particularly young or impressionable first time offenders. You put them into a kennel with dangerous criminals and the first thing they do is learn that it's "us and them". Inmates versus guards. These are people who have done something against society and have to pay for it; true. There is a wedge driven between the offender and society. What Millhaven does is to drive that wedge in very deep.

And if you feed all the offenders into the mill that way, they come out that way. If a convict wasn't antisocial going in, he certainly will be coming out. You create a problem that plagues the system from the start. Once convicted, you're a criminal. The system is designed to keep you that way. Again, I'm speaking about people who should not be driven down that road.

Q. So you see an inconsistency between the Millhaven treatment and the principles of sentencing and
corrections, one of which is rehabilitation?

A. Oh yes. You incorporate the "us and them" mentality right off the bat, everyone who works for CSC
[Correctional Services Canada] is one of them, including guards, social workers, therapists. But at the same time you're saying to the inmate, now go ahead and get rehabilitated. Instead, they become a criminal.

Most impressionable inmates believe that they need to ingratiate themselves into the subculture. I didn't believe hat and I don't think I was damaged by the process, but others were and are. I'm not worried about Julius Mlnitzer or Lenny Rosenberg. Society just wants to punish us, as I said, and I accept that.

ON LAWYERS AND INMATES
Q. Tell me about lawyers; what if anything should lawyers be doing for their clients after sentencing?

A. One of the first things that happened when I first came into prison, I was deeply ashamed that I had contributed to the low opinion of lawyers among their clientele.

Just forget the public's image of lawyers for a minute. I don't know of a profession in the world — especially a helping profession — that has a lower opinion in the eyes of its clientele than lawyers. I realized that and I was at once deeply ashamed. Because I verified the clientele's opinion; I was a lawyer; I was a crook. I proved the point.

I hated the business of practising law. But I was proud of being a lawyer, as pure lawyer. I was proud of my cases, of articles I wrote, of teaching. Being a lawyer was a fine thing. And I helped to destroy that.

Over time I came to realize that it wasn't really that simple. I came to understand that to whatever extent dishonest lawyers like me had contributed to the low image, that the profession as a whole bore some responsibility.

Q. Alright, you had better explain that.

A. Well, criminal lawyers for the most part are of the view that their clients are the accused. This is not right. Because most of the accused become the convicted.

I believe that criminal lawyers as a group have some responsibility for their clients as convicts. It's fine and dandy to have groups like the Association in Defence of the Wrongly Convicted — and I don't disparage them at all — but it's just not enough. It has been said that we measure a democratic society by its weakest link. Are criminal lawyers upholders of democracy, or not? But democracy and human rights are taking a terrible beating in Canadian prisons. Read the Arbour Report.

Q. Fine, but there's no money to be made in prison rights law, at least for your average practitioner.

A. Okay, but where are the high profile guys, lending their backing to the profession? I'm not down on the small guy; he's had the rug pulled out from under him by changes in legal aid, I know he or she can't afford to get too involved in prison issues. I am not unaware of or unsympathetic to the problems of a criminal lawyer today. But where are the beacons of the profession? I can't remember the last time the Criminal Lawyers' Association intervened in a prison issue case. I say there is a general professional obligation to look after the rights of clients past and future. (Don't forget that the clients will be coming back from jail.)

There is a hard core of lawyers who try. Ron Price, Sandra Leonard, Claire Price, Bob Bigelow and David Cole when they were practising — these people care and they try. But they do not have the backing of the profession. The big guys and the CLA are nowhere.

Q. What specific need for lawyers are you concerned about? I mean, other than the general observation that human rights and civil liberties are getting abused in the prisons.

A. Well for one thing the Federal Court has to be the most conservative court in the country. Prisoners, most of them, have to go there on their own. Recently the Federal Court said that liberty is only subject to a general duty of fairness, and thus there is no specific right to cross-examine at a parole hearing. I mean, with all the creative energy out there, with novel arguments being put forward all over the country, there is no organized attempt to impose the rule of law on the operations of Canadian penal institutions. CSC makes up its own rules, and the criminal lawyers are letting them get away with it.

Q. Well, be more specific. Tell us some examples where lawyers are needed.

A. Inmates need full disclosure in CSC hearings. You guys have done a wonderful job on the outside. You forced the Crown to make full and timely disclosure. The preliminary inquiry is much less important than full disclosure. The value of disclosure to an ordinary client in a criminal case is immense. It's the most cost-effective way to defend the case. There is no real disclosure in parole hearings.

Inmates need CSC to be accountable for the decisions and actions of its employees. The rule of law has to be imposed.

Moreover, the few rights and privileges inmates do have are vulnerable. Visiting rights, for instance, should not be arbitrarily cancelled. Passes, privileges, where an inmate can work, what materials an inmate can possess, movies and books, and so on. Did you know that CSC says the inmates cannot accept free contributions of legal books?

Q. Is the point that these seemingly minor things are not protected by law?

A. They're not minor at all, but even if they are, the point is there is no application of the law on the inside. I'll give you an example. I had to go for medical treatment to an outside doctor, something minor but I was ill. I was asked to consent to a strip search before I could go.

Q. Searched going out?

A. Going out of the penitentiary, to see the doctor. I was asked to consent to a strip search. I said to the guy, "The regulations say I can't be asked to consent unless there is reasonable cause to believe I'm doing something wrong, or I'm coming from a dangerous place." He said, "You're coming from a penitentiary, it's a dangerous place." I said I didn't want to consent. He calls security, they say if Melnitzer doesn't consent he's not going. Furthermore, if he doesn't consent then he's under suspicion of carrying contraband. What could I do? I consented.

Q. Yes, but your average citizen would probably see nothing wrong here, on the theory that inmates shouldn't have the same rights as somebody on the outside, that this is what being in prison means.

A. Your average citizen, okay, but your average lawyer knows this is wrong. And if your average citizen is of that view, then tell him or her to write to Parliament and get them to repeal the regulations that say an inmate does not have to consent to a strip search in those circumstances. The point is, I had a legal right not to consent but I could not exercise it. It's not about me having to take off my clothes, it's about the fact that this kind of arbitrary rule-making goes on without redress.

Q. I suppose you could say it also doesn't fit in with a rehabilitative theory of prisons, that it's just demeaning and serves no other purpose.

A. Well, it's not that it's demeaning. The guards said they had a guy a few years ago who went out under escort, pulled a knife and tied a guard to a tree and escaped. So I understand their concern. But CSC makes its own rules and is not accountable to its own regulations. How does that sit in the gut of any criminal lawyer?

See, I believe it's all about procedure. Substantive justice is rough. Procedure isn't. Only procedural justice is equitable across the board. Not every person can hire O.J. Simpson's lawyers. Not every person can get expert evidence; some people can't afford to even have a trial. But every lawyer can ensure that the authorities – the judge, the prosecutor, the police, CSC, whoever — follows the rules. And in the prison setting the lawyers aren't there, so the rules are ignored. There is no redress for this unless something goes disastrously wrong in a jail. That's how the Arbour Report came to be.

So there is a need for the involvement of criminal lawyers in the prison setting. Right now, the clients are not being served by the profession. Their low opinion of criminal lawyers is to this extent justified.

Q. Thank you, Mr. Melnitzer.

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Copyright 1998, Criminal Lawyers Association


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Risks: Convicted fraud artist, Fraudster lawyer, Greed, Trust, Disbarred, Canada, 19971001 Julius Melnitzer

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