Arson: The Crime And The Law

We in the fire service have long recognized how serious is the problem of arson. Virtually any experienced firefighter or fire investigator can tell tragic stories that graphically illustrate the devastating consequences of intentionally set fires. Indeed, we all feel arson's effects.

The National Fire Protection Association (NFPA) reports that almost 800 persons are killed each year and thousands more are injured by deliberately set fires. Arson causes more than $1.8 billion in property damage annually. This is a cost that we all pay in the form of increased property insurance premiums. It is a violent crime that cannot be ignored.

Unfortunately, arson catches the public's attention only occasionally. It happens when there are arson fires of particular significance that can't be ignored. We have seen this recently with the burnings in largely rural southern churches that appear to have been racially motivated. Likewise, in the 1970s, arson received significant public attention when many inner cities were hit by arson-for-profit fires. In the 1980s, the Devil's Night fires in Detroit highlighted yet another form of arson.

Arson today exists in a variety of forms, including vandalism, pyromania, juvenile firesetting, as a murder weapon or to conceal another crime. Often, it is an economic crime used to extort money from insurance companies. Most recently is the possibility that it is being used by extremist groups as a tool of terrorism.

Arson has been present since the very earliest times of recorded history but the elements of the crime have changed significantly on more than one occasion. In early history, the crime of arson was limited to the burning of an occupied house. The law's purpose was to protect citizens from the risk of death or injury. The burning of an occupied house was one of the circumstances in which people were most likely to be killed, so early arson laws specifically addressed this circumstance; they were not intended to protect economic property interests. As a result, the historical common law of arson consisted of four elements:

  1. The fire had to be in or near a dwelling, not a commercial structure.
  2. The dwelling had to be in the possession (owned or rented) of another. No one could be convicted of burning his or her own home.
  3. The structure itself had to be burned. Merely burning the contents was not arson.
  4. The burning had to be malicious.

Arson was one of the earliest crimes in which prosecutors had to show an evil intent. However, during the 1800s and the early years of this century, laws regarding arson changed. By the middle of the 20th century, most states had adopted the view that arson was merely a crime against property and not an offense that threatened people with the risk of death or injury from fire.

This change also reduced the importance of arson in the eyes of the legal community. This was demonstrated by an article about arson and titled, "The Most Neglected Crime in the United States," that appeared in 1980 in a legal periodical. Even by that time, however, there had been changes, both legally and culturally, that affected the fire service. Those changes continue to this day.

The 1970s brought dramatic increases in arson across the nation, especially in declining urban areas. That was an era when the number of arson-for-profit schemes grew dramatically and ravaged our inner cities. Overwhelmed local prosecutors looked everywhere for help.

Help came in at least two forms. First, federal prosecutors became far more active than before in addressing arson. Although federal authorities did not have a specific federal arson statute, they used a number of innovative legal theories to prosecute arsonists. For example, there were prosecutions under racketeering, conspiracy, mail fraud and anti-explosives laws. We are continuing to see this as federal authorities are involved in investigating and prosecuting some of the recent church burning cases. The second important change was that many states revised and strengthened their arson laws so that they were more than merely property-protection statutes. Today's arson laws provide greater flexibility than ever to address the wide variety of arson schemes and motives that we have seen in recent years.

Today, damage caused by explosions, as well as burning, is considered arson in many jurisdictions. We generally think of bombings as terrorist acts, and separate from arson. But fire can be another one of the terrorist's tools. Certainly we who have experienced significant fires know the terror that fire can create. It can be argued that legally there is little difference between the two when they are used for terrorist purposes.

Although the penalties associated with arson vary considerably among jurisdictions, one important change has been the division of arson into more than one degree of severity. This makes the law more adaptable to the nature of the crime. Thus, arson crimes that are considered more serious, such as racially motivated church burnings or terrorist acts, can be dealt with severely.

Finally, the definition of arson has been expanded to include all types of structures, both commercial and private, and not just "the dwelling of another." Without this change, under the old common law, a church burning would not have been considered arson because it was no one's "dwelling."

Arson today is considered a violent crime, much more serious than the property offense it once was. The law will continue to change to meet the needs of our ever-changing culture. And that's the way our legal system ought to work.

Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.