Abstract
Criminalizing arson is both easy and hard. On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people. Yet the same multiplicity of harms or threats that makes it easy to criminalize “arson” (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize “arson” (in the sense of formulating the offense(s) that will address that behavior). This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.
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Notes
See Poulos (1986, p. 299 n. 10; “Coke referred to arson as the ancient felony known as the ‘Burning of Houses.’”).
See, e.g., Model Penal Code §§ 211.2 (endangerment), 220.3 (“mischief,” or property damage).
For a similar analysis using the example of robbery (a combination of assault and theft), see Robinson et al. (2007, p. 41).
This assumes that the criminal code finds it worthwhile to criminalize the “lowest” combinations of culpability and harm, i.e., recklessly risking minor damage or bodily injury. It seems plausible to assume, however, that a criminal code can and should distinguish at least two categories of property damage, and of personal injury (short of death), the lesser of which is still significant enough to warrant punishment (though, of course, less punishment) where recklessly risked or caused.
New York recognizes six classes of felony offense (treating “A-I” and “A-II” as two different levels) and two classes of misdemeanor offense, as well as a category of “unclassified misdemeanors.” N.Y. Penal Code § 55.05. Texas recognizes five levels of felony offense and three levels of misdemeanor. See Tex. Penal Code §§ 12.03–12.04. California does not classify offenses into grades, but states specific sentences for individual offenses.
See Tex. Penal Code § 28.07.
See Tex. Penal Code § 28.08.
Both offenses are graded according to the degree of pecuniary loss caused, which indicates that both address activities that constitute “property damage” under the terms of that offense. Thus both are almost entirely redundant of that offense, and their non-redundant features could easily be incorporated into the definition and gradation of that offense to avoid the superfluity (and potential for confusion).
See N.Y. Penal Code §§ 110.00 (defining attempt), 110.05 (grading attempt).
For recklessly risking, as opposed to causing, damage, the code recognizes only one distinction: risking damage greater than $250 is a class B misdemeanor, while risking a lesser amount of damage is not criminalized.
If graves and burial sites would not otherwise count as “property,” the code could simply have amended the definition of the term, or the elements of the property-damage offense, rather than creating a distinct offense here.
See N.Y. Penal Code § 125.25(1) (intentionally causing death; Class A-I felony); N.Y. Penal Code § 125.15(1) (recklessly causing death; Class C felony); N.Y. Penal Code § 120.05 (intentionally causing serious physical injury; Class D felony); N.Y. Penal Code § 120.00 (recklessly or intentionally causing physical injury; Class A misdemeanor).
See N.Y. Penal Code § 125.27(1)(a)(i)–(ii).
In fact, as noted earlier, this offense definition can also be satisfied even if no injury results.
See Tex. Penal Code § 15.01.
See Model Penal Code § 220.2.
For a similar suggestion that combination offenses, such as robbery or burglary, should be replaced with a “building blocks” approach that allows cumulation of punishment for their underlying individual offenses, see Robinson et al. (2007, p. 43).
See Model Penal Code § 210.2(1)(b).
References
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Acknowledgments
The author thanks the participants at the Rutgers University conference “The Evolution of Criminal Law Theory” (May 30–31 2008) for their comments, and also thanks Andre Nance for his capable research assistance. Work on this article was supported by a summer research stipend from Brooklyn Law School, for which the author thanks the School and Dean Joan Wexler.
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Appendices
Appendix A: Grading of arson, property damage, and personal injury offenses in New York Penal Code
Grade | Arson offense(s) | Property damage offense(s) | Offense(s) against person |
|---|---|---|---|
FA-I | 125.27(1)(a)(vii): (I) causes death in committing 1st or 2nd-degree arson; 125.25(3): causes death in committing arson; 150.20: (I) damages occupied building or motor vehicle by starting fire, if presence of another person is known or reasonable possibility, and [(uses incendiary device or explosive), or (causes SPI), or (committed offense for profit)] | 125.25(1): (I) or (R + DI) causes death | |
FB | 150.15: (I) damages occupied building or motor vehicle by starting fire, if presence of another person is known or reasonable possibility | 145.12: (I) damages property by means of explosive [more like an arson offense, but categorized as “mischief” offense] | 120.10: (I) causes SPI with weapon, or (I) disfigures or disables another, or (R + DI) creates risk of death and causes SPI, or causes SPI during felony; 120.11: (I) causes SPI with weapon to peace officer; 125.20(1): with (I) to cause SPI, causes death |
FC | 150.10: (I) starts fire or causes explosion and (I) damages building or motor vehicle (defense if person owns property and has no reason to believe conduct might endanger another’s safety or property) | 120.08: (I) causes SPI to peace officer or firefighter; 125.15(1): (R) causes death | |
FD | 145.10: (I) causes damage >$1500; 145.20: damages or tampers with public utility or common-carrier property and (I) causes substantial interruption or impairment of service | 120.05: (I) causes SPI, or (I) causes PI with weapon or to peace officer or firefighter, or (R) causes SPI with weapon, or causes PI during felony; 120.25: (R + DI) creates grave risk of death | |
FE | 150.05: (I) starts fire or causes explosion and (R) damages building or motor vehicle | 145.05(2): (I) causes damage >$250; 145.23(a): (I) damages grave or burial place in amount >$250 | 125.10: (N) causes death |
MA | 150.01: (I) damages property by starting fire or causing explosion | 145.00(1): (I) causes damage; 145.00(3): (R) causes damage >$250; 145.22(a): (I) damages grave or burial place | 120.00: (I) or (R) causes PI, or (N) causes PI with weapon; 120.20: (R) creates substantial risk of SPI |
MB | 145.14: tampers with property with (I) to cause substantial inconvenience; 145.25: (R) creates substantial risk of damage >$250 |
Appendix B: Grading of arson, property damage, and personal injury offenses in Texas Penal Code
Grade | Arson offense(s) | Property damage offense(s) | Offense(s) against person |
|---|---|---|---|
F (capital) | 19.03(a)(2): commits arson and (I) or (K) causes death | ||
F1 | 19.02(b): commits arson and causes death; 28.02(a): starts fire or causes explosion with (I) to damage structure, building, vehicle and [(K) that it is another’s or (R) as to endangering safety or property], and [BI or death results, or property is habitation or place of assembly/worship] | 28.03(a),(b)(7): (I) or (K) damages or tampers or makes markings, and loss >$200,000 | 19.02(b): (I) or (K) causes death, or (I) to SBI and causes death |
F2 | 28.02(a): starts fire or causes explosion with (I) to damage structure, building, vehicle and [(K) that it is another’s or (R) as to endangering safety or property] | 28.03(a),(b)(6): (I) or (K) damages or tampers or makes markings, and loss is $100,000–200,000 | 19.04: (R) causes death; 22.02(a)(1): with (I),(K) or (R) as to BI, causes SBI |
F3 | 28.02(a)(2),(f): (I) starts fire with (I) to cause damage or injury and (R) causes damage; 28.02(a-1): (R) starts fire or causes explosion while making controlled substance, and damages any building, habitation, or vehicle, and BI or death results | 28.03(a),(b)(5): (I) or (K) damages or tampers or makes markings, and loss is $20,000–100,000 | |
F (state jail) | 28.02(a-1): (R) starts fire or causes explosion while making controlled substance, and damages any building, habitation, or vehicle | 28.03(a),(b)(4): (I) or (K) damages or tampers or makes markings, and loss is $1500–20,000 or (habitation + damage caused by firearm or explosive) or (property was fence to contain livestock or game) | 19.05: (N) causes death |
MA | 28.03(a),(b)(3): (I) or (K) damages or tampers or makes markings, and loss $500–1,500 or impairs public utility | 22.01(a)(1): (I),(K) or (R) causes BI; 22.05(a): (R) places another in imminent danger of SBI | |
MB | 28.03(a),(b)(2): (I) or (K) damages or tampers or makes markings, and loss $50–500 | ||
MC | 28.03(a),(b)(1): (I) or (K) damages or tampers or makes markings, and loss <$50 or substantial inconvenience; 28.04: (R) damages |
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Cahill, M.T. Grading Arson. Criminal Law, Philosophy 3, 79–95 (2009). https://doi.org/10.1007/s11572-008-9058-1
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DOI: https://doi.org/10.1007/s11572-008-9058-1