Second-Degree Arson

The legal definition of second-degree arson requires an intent to set something on fire. State arson laws can vary on the specific intention of the crime, but second-degree arson convictions always require some sort of forethought. The difference between second-degree arson and aggravated arson is when the intent of the fire or explosion is to cause harm or injury and not just property damage. Learn more below.

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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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UPDATED: Jul 15, 2021

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Second-degree arson is an arson where the motive behind setting the fire or explosion is not as malicious or where the injuries or damages are not as significant. Every state has some type of arson statute that essentially involves the setting of a fire or explosion that results in an injury or property damage.

Aggravated arson is an arson that results in death or serious injuries, or is set by a defendant who is motivated to hurt someone else. Read on to learn about some of the different ways that second-degree arson is charged, the potential defenses, and the consequences of conviction.

Second-Degree Arson

The first element of a second-degree arson charge is a specific intent to start a fire or cause an explosion. If someone accidentally sets fire to something, then he could be charged with some type of reckless based charge, but not second-degree arson. This intent requirement is separate from the intent required to show the second part of an arson charge: that the fire was for a malicious purpose or had a bad result.

States vary on the second component, but as mentioned a bad result (regardless of the first intent) will support an arson charge. For example, if a person intentionally decides to burn trash in a burn barrel, and the fire then gets out of control and destroys an entire neighborhood, the defendant could be charged with arson. The charge is arson because the result of the fire was the destruction of a habitation, even though the original intent was just to burn some trash.

Other states focus on the intent, regardless of the result. For example, in Texas, if a defendant sets a fire with intent to destroy a house that belongs to another person, then he could be charged with arson, even if the home was not damaged.

Some states require both components. For example, South Carolina requires proof of malicious intent and proof of damage to the property. This breakdown seems a bit convoluted, but it’s extremely important to a defendant when he is considering how to prepare his defensive theory. Knowing the intent or proof requirements affects how a defendant can present his case.

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Defensive Theories

Some states have specific defenses listed in their arson statutes. These are state-specific defenses that can only be used in that state for any arson charge. For example, Arizona permits a defendant to raise voluntary intoxication as a defense. The same defense would not work in Texas, but proof that a defendant obtained a permit for a controlled burn would. Even though specific defenses are available, most defendants attempt to negate the second component of an arson charge.

If a defendant resides in a state which requires proof of actual damage for a second-degree arson charge, then a defendant could focus on the absence of damage as a defense. This defensive theory would work in a situation where a fire was set, but contained before it actually caused damage to someone else’s property.

If a defendant resides in a state that requires proof of malicious intent to support a second-degree arson charge, then he could present evidence that the purpose of the fire was not malicious. This defense would work in the burn barrel example described above. Even though this defense only changes the charge, this change can dramatically affect sentencing options and long term consequences.

Consequences of Second Degree Arson

Like the nature of the charge, the punishment range for second-degree arson tends to be in the middle. The punishment tends to range from two years to thirty-five years in prison. Many states will consider second-degree arson a crime of violence. This means that a defendant will have to complete more of his sentence before becoming eligible for parole than a non-violent offender. Some states, like New York, authorize the stacking of arson charges, even if they arose out of the same transaction. Stacking is when a defendant must finish a sentence for one offense, before beginning the sentence for the second offense. Violent offenses are also used to significantly enhance punishment ranges for subsequent offenses.

If a defendant can raise a defensive theory that results in a reduction of the charge, then he could benefit from a lower punishment range of two to ten years in prison. Lower charges, such as criminal mischief, are also considered non-violent offenses.

If a defendant is placed on probation for a second-degree charge, the first major condition will usually be restitution to the victim or victims. A defendant should have at least a basic strategy to pay the restitution before committing to probation. Other conditions can be imposed related to any reasons for the starting of the fire including mental health counseling, anger management, and attending victim impact panels.

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