Third Degree Arson

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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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Arson is generally defined as the setting of a fire or causing an explosion combined with some malicious intent or bad result. When a defendant sets a fire or causes an explosion that is based on a lesser intent or causes less serious damage, they can be charged with third degree arson. Read on to learn more about the charge of arson in the third degree.

Third degree arson is one of the lower level arson charges. A couple of states have a lower charge of state jail felony arson or misdemeanor arson, but for many, third degree arson is the lowest category. As mentioned, arson is the setting of a fire or causing of an explosion combined with another element. Defendants who set fires with the intent of harming others or do cause harm to others are charged with aggravated or first degree arson. Defendants that maliciously or intentionally set fires to habitations are charged with second degree arson. Third degree or lower categories of arson generally focus on reckless conduct, rather than intentional conduct, or damage to buildings or motor vehicles, rather than homes.

The definition of recklessness includes when person is aware of a substantial risk but consciously decides to ignore that risk. If a defendant continuously ignites bottle rockets in the direction of a storage shed that is made of or contains flammable material, he or she could be charged with third degree arson because they were aware of the risk and disregarded the risk. This defendant can be charged with third degree arson even though he did not specifically intend to damage the shed. This is sometimes called the transference of intent. New Jersey and Texas are two states that have third degree or lower charges for reckless cases of arson.

Instead of basing a third degree arson charge on reckless conduct, other states focus on the property damaged. If a defendant destroys a habitation, they would be charged with first or second degree arson because the result was the destruction of a home. If a defendant only damages a car or small structure, they would be charged with the lesser offense of third degree arson. In New York, for example, a defendant would be charged with third degree arson for setting fire to a vehicle.


Many defenses to arson charges are state specific or charge specific. New York authorizes an affirmative defense to a third degree charge if a defendant can show that:

  1. No other person had an interest in the property that was destroyed (or if another did have an interest—they consented to the destruction);
  2. The sole purpose for the destruction was for a legal purpose; and
  3. The defendant had no reasonable basis to believe that anyone else would be endangered by the fire or explosion.

Other defensive theories are based on the second element or factor of an arson charge. If a state charges a person with third degree arson, the defensive strategy would be to show that the defendant was not aware of the risk associated with the fire or explosion.  If the charge for third degree arson is based on the result (i.e. destruction of property), a defendant may want to focus on mitigating the amount of damage to make a plea for a misdemeanor criminal mischief charge, rather than a third degree felony arson charge.

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Depending on how a state’s statute is worded, third degree arson may or may not be considered a “crime of violence.” First and second degree arson charges usually are which results in higher sentences and tougher parole rules. A third degree arson charge can often result in a non-violent classification, which means a greater chance for probation, a lower range of punishment, and earlier parole opportunities. The range of punishment for third degree arson varies by state, but will range from two to fifteen years. 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 they begin their sentence for third degree arson.

If a defendant is granted community supervision, then a defendant will be required to pay any restitution for damages. Instead of challenging a charge directly, many defendants will negotiate for lower amounts of restitution. A more reasonable restitution payment will improve a defendant’s chances on successfully completing a probated sentence.

Because third degree arson is often based on reckless conduct, some defendants may qualify for an alternate charge of criminal mischief. Even if the punishment ranges are the same, negotiating for the alternate charge has several advantages. First, criminal mischief is not considered a crime of violence, thereby avoiding negative stacking, parole, or sentencing consequences.  The second advantage is the social stigma associated with even a third degree arson charge.  Many employers are leery about hiring someone convicted of arson because of insurance or safety concerns (i.e. if you get mad, will you burn the building down?). Less anxiety is associated with a criminal mischief charge. Criminal mischief is usually associated with a “stupid prank” mentality.

Criminal Attorneys

Even a third degree arson charge can carry serious and long term consequences. Because of the variations by states regarding sentencing options, charging allegations, and parole consequences, a defendant should consult with a criminal attorney in their state before making a final decision on how to dispose of their case. Some pleading options can literally prevent a defendant’s career or livelihood from going up in smoke.

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