Is arson a felony? A criminal defense lawyer explains

Posted on October 18, 2022

You were arrested after starting several wildfires in protected forest lands. The arresting officer made several comments hinting that you committed felony arson. Is arson really charged as a felony offense?

It depends. Some states say that arson is always a felony offense. But many others say that it can be charged as either a felony or a misdemeanor, largely depending on the facts of your case.

For example, a prosecutor may be inclined to charge an arson offense as a felony where someone suffered great bodily injury because of the crime.

By contrast, a charge of arson could get filed as a misdemeanor where the offense only resulted in minimal property damage.

In general, arson is the intentional and malicious setting fire to some type of:

• property (including your own property and the property of others),
• structure, or
• forest land.

1. When do arson charges get filed as felonies?

The arson laws of some states say that the crime is always charged as a felony.¹

Other states divide arson cases into different degrees of arson, for example:

• first-degree arson,
• second-degree arson, and
• third-degree arson.

The facts of an arson case will dictate which degree of arson you ultimately get charged with. Typically, the lower the number of degree, the more severe the offense (and the greater the likelihood that you will face a felony arson charge).

In deciding what degree of arson to charge, prosecutors usually take into account such factors as:

• the type of property that was set fire to,
• the value of the property burned,
• the amount of property damage,
• whether someone was hurt in a fire, and
• the arsonist’s intent in committing the crime.²

You will likely get charged with felony arson for a low degree of arson that involves:

• the burning of an inhabited structure,
• the burning of a place of worship,
• a risk of injury to someone, and
• actual injury to a person.³

You may also face felony charges if you set fire to your own property with the intent to defraud an insurance company (the crime could be charged as either insurance fraud or a form of arson).⁴

A felony conviction of arson is usually punishable by:

• custody in state prison, and/or
• substantial fines.

2. When is a charge of arson a misdemeanor?

Some states say that arson is a misdemeanor if it falls into a specific degree of arson. For example, New York law says that arson in the fifth degree is a misdemeanor offense.⁵

Other states say that arson is a misdemeanor if the crime results in relatively minimal property damage.⁶

Misdemeanor arson is typically punishable by:

• custody in county jail (as opposed to state prison), and/or
• a fine.

3. Is there a difference between simple arson and aggravated arson?

Some states make a distinction between “simple arson” and “aggravated arson.”

In the states that do, simple arson generally refers to the intentional and malicious setting of fire to:

• property, or
• forest lands.⁷

In contrast, some states say that you commit aggravated arson if you:

1. set fire to or blow up some type of property, and
2. at the time, you foresaw that another person could be injured in the act.⁸

Depending on the facts of your case and the state you are charged in, both simple arson and aggravated arson could lead to felony charges.

However, some states may say that simple arson is a type of misdemeanor offense.⁹

4. Should you consult with a criminal defense attorney?

Yes. You should get legal help from a criminal defense lawyer or law firm/law office if you are facing an arson charge.

A criminal lawyer can help by:

• advising you on the criminal laws that apply to your case,
• working to make sure you avoid a state prison sentence,
• ensuring that you keep your criminal record clean, and
• contesting criminal charges with a legal defense.

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