Arson: Legal Aspects

Owing to the narrow confines of arson under the common law, statutes were enacted in every state beginning in the early 1800s (as, for example, in the Acts Passed at the First Session of the Legislative Council of the Territory of Orleans. . .. p. 416), greatly expanding the crime to include the criminal burning of almost any type of property. The statutory scheme remained far from uniform through the early 1900s, but statutes generally protected property as well as habitation. The burning of one's dwelling constituted arson, whether or not the intent was to collect insurance. A few of the earliest statutes imposed a harsher penalty if the burning occurred at night. Modern statutes take note of the time of the arson only in determining the grade of degree of the crime. Statutory arson also included situations in which chattels (personal effects) were burned in a building without spreading to the structure. A few statutes followed the common law distinctions between dwelling house and other buildings. Some distinguished between occupancy and vacancy.

Statutes commonly divide arson into various degrees. First-degree arson is directed at the endangering of life rather than of property, whereas the lesser degrees relate to the value of the damaged property, the motive, or the type of property burned. The penalties differ according to the degree of arson.

A typical Alabama statute provided that arson of the first degree consisted of the willful burning of a dwelling or structure in which a person was present at the time, or of any inhabited dwelling. Arson of the second degree included the willful burning of a public building, manufacturing establishment, storage place, vessel, or uninhabited dwelling. Third-degree arson consisted of the willful burning of a house or vessel, bridge gate or causeway (Code of Ala., §§ 3289, 3290, 3293 (1923)). Many other statutes provide for aggravated arson, which covers that form of arson which does or could result in an injury to persons, and simple arson, which is all other arson.

Statutes generally require the act to be "willful" or "malicious," or some combination of these terms. Regardless of the word or phrase used, the interpretations have generally been in accordance with the common law.

Under the common law, damage caused by an explosive could not be considered arson since there was no burning. Many states have solved this problem by statutorily defining arson to include injury to property resulting from the use of an explosive, whether or not an actual burning occurs. Most modern statutes include "explosive" in the means of destruction or damage performed by arsonists (N.Y. Penal Law (McKinney) §§ 150.05—150.10, 150.20 (1999)).