First Degree Arson (Aggravated Arson)

First-degree arson, or aggravated arson, is the highest level of arson. Most states require proof that a defendant intentionally or knowingly set a fire or caused an explosion that resulted in a fire. If a defendant's motivation for committing the offense is malicious, this intent will result in a first-degree charge.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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First-degree arson is the highest level of arson. The basic definition of arson is the starting of a fire or explosion with an intent to destroy or damage something. The intent or result of the arson will determine the degrees of arson charged to a defendant. Read further to understand the distinction between arson charges and how first-degree arson is charged, possible defenses, and the potential consequences.

What is first-degree arson?

First-degree arson is considered the most egregious form of arson. Some states will also call this aggravated arson or arson in the first-degree. The first element of a first-degree arson charge is a basic arson allegation. Most states require proof that a defendant intentionally or knowingly set a fire or caused an explosion that resulted in a fire.

The second component is proof of some aggravating circumstances. The aggravating factors that provoke the first-degree charge vary by state. However, a defendant is usually charged with first-degree arson when the overall intent or result is particularly harmful. The intent element is in addition to the general intent requirement for a basic arson charge.

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What are aggravating circumstances?

If a defendant’s motivation for committing the offense is malicious, this intent will result in a first-degree charge. Examples of malicious purposes include setting a fire to obtain insurance settlement, to terrorize the occupant of a building, or with intent to harm another person or property. The malicious or illegal intent is usually inferred from the surrounding circumstances. Factors that courts have approved for developing this intent include showing that a defendant was under financial stress or had made prior threats of arson. The intent component frustrates many defendants because they feel that circumstantial evidence of intent should not be allowed. This is, however, the most common and accepted type of evidence used to develop intent.

The next key aggravating circumstance is the result, or potential result, of the arson. Regardless of the malicious intent, or lack thereof, many states will charge a defendant with first-degree arson when a fire or explosion results in death or serious bodily injury to another person. South Carolina, for example, will aggravate an arson charge when another person dies as a result of the arson. Texas and Oregon, however, will aggravate to a first-degree when a defendant places another person in danger of death or serious bodily injury. The main focus of these arson statutes is the risk of harm to others.

Another aggravating circumstance is the property destroyed as a result of the arson. A few states will enhance an arson allegation to a first-degree if the property destroyed or threatened is a habitation, place of worship, or business. However, most states will categorize property-based arson as second-degree arson. While somewhat frustrating, understanding how a charge is elevated to first-degree arson is extremely important to develop an effective defensive theory or strategy.

What are potential defenses?

A defendant charged with arson based on malicious intent may need to negate two different intents: the intent to set the fire and the intent to cause some harm. Some defendants choose to attack a first-degree felony charge outright and claim innocence. When fire investigation techniques were less sophisticated, contesting causation was easier. However, with the advent of more extensive techniques and cameras in every major shopping center, many Fire Marshalls have been able to present a higher quality of evidence to show an intent to cause a fire or explosion. As a result, many defendants shift their defensive focus to negating the second malicious intent.

To pursue this defense approach, a defendant admits that he started the fire, but argues or presents evidence that any harm or potential harm was unintentional. More and more cities ban firecrackers during Fourth of July celebrations because of the number of people that accidentally set nearby houses on fire with bottle rockets. If this type of defendant lived in a “malicious intent” state, he or she could admit to starting the fire or explosion, but focus on showing that the result was purely accidental. This defense would not work in a state where the destruction of a home is an aggravating circumstance by itself, even absent any other malicious intent evidence.

For the states in which the result or potential harm is the factor that provokes the first-degree charge, a defendant can focus on demonstrating the accidental nature of the fire, and thus negating the requisite intent. They can also contest the harm or potential harm to another. For example, if a defendant accidentally sets fire to a trailer house in an isolated area, they could argue that no one was at risk of being injured.

Some defensive theories are state-specific. For example, Arizona permits a defendant to raise voluntary intoxication as a defense because arson is a specific intent crime. Texas, however, does not authorize voluntary intoxication as a defense but will permit a defendant to show that he had a permit to start the fire as a defense to prosecution. Even if a defensive theory does not result in a complete dismissal, the development of a defensive theory can result in a lower arson charge.

What are the consequences of arson convictions?

The first major consequence of an aggravated arson conviction is the potential for jail time. Like defenses, the range of punishment for first-degree arson varies by state. Next to murder, however, first-degree arson is usually listed as one of the most serious offenses. A defendant in South Carolina can face a fifty-year sentence. A defendant in Texas faces five to ninety-nine years of life in prison. Because first-degree arson is generally considered a crime of violence, a defendant convicted of arson also faces stiffer parole laws or rules. Many states require sentences for offenses that arise out of the same transaction run concurrently, or at the same time. A few states, however, make arson an exception to this rule and authorize stacking or consecutive sentencing, which can significantly increase a defendant’s time in prison.

If a defendant can show that the arson was not motivated for a violent purpose and no one was actually hurt, he or she may be able to qualify for probation. The probation conditions for a first-degree charge can be intensive and are tailored to address a defendant’s motivation for setting the fire. For example, if money was the motivator, the defendant can be required to complete life skills or financial management classes. A defendant whose motivation is based on a mental condition can be required to attend counseling and complete any court-ordered mental health programs. If a defendant can successfully negate the aggravating component of a first-degree arson allegation, then he may be found guilty of a lesser included arson charge. A lesser charge means an even lighter punishment ranging from two to twenty years.

After a person is convicted of first-degree arson, the charge of arson is usually available for enhancement, should the defendant re-offend. Some states have very specific enhancement provisions for prior crimes of violence. This means that a defendant can face an even larger amount of time if he reoffends.

The secondary consequence of a first-degree arson conviction is limited employment. While not quite as bad as a sex offender condition, for example, a first-degree arson charge offender can find themselves with a felony and limited employment opportunities because the insurance company for the employer views the defendant as a safety risk. Higher risk means a higher premium for the employer.

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