Is Arson a Felony? Degrees, Dwelling vs Structure, and Penalties by State (2026)

Yes — arson is a felony in nearly every U.S. jurisdiction. Unlike theft, which only becomes a felony when the value of the stolen property crosses a dollar threshold, arson is a felony at any value because the malicious burning itself is the offense. A fire is inherently dangerous to human life and can spread beyond the original target, so the law punishes the act of setting it maliciously, regardless of how much (or how little) actually burned.

All 50 states, the District of Columbia, and the federal government classify malicious arson as a felony. The variation between states is in the degree (1st, 2nd, 3rd, sometimes 4th or 5th) and the corresponding prison sentence — from 1-3 years for low-degree arson up to life or the death penalty for arson that causes death. Only a handful of states allow misdemeanor treatment for reckless burning (where the fire was started without malicious intent, through recklessness or negligence) or for very low-value property damage. Even in those states, malicious arson of a building is always a felony.

If you are charged with arson, you are facing a felony in virtually every scenario. The only realistic path to a misdemeanor is if the prosecutor cannot prove malicious intent and the damage was minor — and even then, many states make reckless burning a felony too. Talk to a criminal defense attorney immediately.

At common law, arson was defined as the malicious burning of the dwelling of another. The key elements were: (1) a burning — actual charring or damaging of the structure, not just smoke or scorching; (2) of a dwelling — the building had to be a place where people lived; (3) of another — the property had to belong to someone other than the defendant; and (4) malice — the fire was set intentionally or with reckless disregard for the consequences.

Modern statutes have broadened the definition significantly. Today, in most states, arson includes: (1) damaging by fire or explosion any building, structure, vehicle, or personal property; (2) whether the property belongs to the defendant or another (burning your own property can be arson if done to collect insurance or if it endangers others); (3) with malicious or intentional state of mind (in some states, reckless burning is a separate, lesser offense). Many states also specifically include forest land, wildland, crops, and vegetation within the arson statutes, reflecting the wildfire risk in western states.

The burning requirement: most states require actual charring or damage — not just placing flammable materials near a building. Some states, however, criminalize attempt (placing incendiary devices with intent to burn) as a separate offense, often at the same felony level as completed arson.

States classify arson by degree based on four main factors:

1. Type of property. A dwelling (a building where people live or lodge — houses, apartments, hotels, hospitals, dormitories) is treated as the most serious target. Commercial and public structures (stores, offices, schools, churches, jails) are typically second. Personal property (vehicles, goods, crops, timber) is often third. Forest land and wildland are treated separately in many western states.

2. Occupancy. An occupied building — one where a person is present, or where people are normally present, or where the defendant had reason to believe someone was present — elevates arson to first degree in most states. A vacant or unoccupied building may reduce the degree but usually remains a felony.

3. Injury or death. If the fire injures anyone (including a firefighter responding to the scene) or causes death, the charge escalates dramatically. Arson causing death can be charged as felony murder in most states, carrying life or the death penalty.

4. Mental state. Malicious or intentional burning is the most serious. Reckless burning (consciously disregarding a substantial and unjustifiable risk) is a lesser offense — a felony in some states, a misdemeanor in others. Negligent burning (should have been aware of the risk) is typically the lowest grade and often a misdemeanor.

Typical penalty ranges: 1st degree (occupied dwelling, injury/death): 10-30 years to life; 2nd degree (unoccupied structure): 5-20 years; 3rd degree (personal property or lower value): 1-10 years; 4th/5th degree or reckless burning: up to 1 year (misdemeanor in some states) to 5 years (felony).

While malicious arson is always a felony, many states have a separate offense called reckless burning, negligent burning, or negligent arson for fires started without malicious intent. Reckless burning means the defendant intentionally started a fire (or caused an explosion) but did not intend to damage property — instead, they consciously disregarded a substantial and unjustifiable risk that the fire would spread and cause damage.

The misdemeanor exception: in many states, reckless or negligent burning with minor damage can be charged as a misdemeanor rather than a felony. States with misdemeanor-level arson or reckless burning include: Arizona (reckless burning, Class 1 misdemeanor), California (reckless burning, wobbler), Delaware (reckless burning under $1,500, Class A misdemeanor), Minnesota (4th and 5th degree arson, gross misdemeanor/misdemeanor), Missouri (3rd degree arson and reckless burning, Class A misdemeanor), Montana (negligent arson, misdemeanor), Nebraska (3rd degree arson under $1,500, misdemeanor), New Hampshire (minor arson, misdemeanor), New Mexico (arson under $500, petty misdemeanor/misdemeanor), New York (5th degree arson, Class A misdemeanor), Ohio (arson under $500, 1st degree misdemeanor), Oregon (reckless burning, Class A misdemeanor), Tennessee (reckless burning, Class A misdemeanor), Utah (arson under $1,500, misdemeanor), Vermont (4th degree, misdemeanor option), Washington (reckless burning 2nd degree, gross misdemeanor), and Wyoming (4th degree arson under $200, misdemeanor).

Even in these states, the misdemeanor only applies when the damage is minor AND the intent was not malicious. If the prosecutor can prove you intentionally set fire to a building, you face felony arson regardless of the dollar value of the damage.

When arson results in death, the defendant can face murder charges under the felony-murder rule in most states. Felony murder is a legal doctrine that holds a defendant liable for a death that occurs during the commission of a dangerous felony (like arson, robbery, burglary, or rape), even if the defendant did not intend to kill the victim or the death was accidental.

Arson is a predicate felony for felony murder in nearly every state. This means that if you set a fire and someone dies — a resident, a neighbor, a firefighter, or even an accomplice — you can be charged with first-degree murder, which carries life in prison or the death penalty in states that retain it.

Examples: In Ohio, Stanley Ford received nine consecutive life sentences for arson that killed nine neighbors. In Oklahoma, first-degree arson is an 85% crime (you must serve 85% of the sentence before parole eligibility), and arson causing death can be charged as felony murder. In California, arson that causes death is prosecuted under the felony-murder rule and can result in life without parole. In Indiana, arson causing serious bodily injury is a Level 2 felony (10-30 years), and arson causing death can be charged as felony murder (40 years to life, or the death penalty).

Even if no one dies, arson that injures a firefighter or bystander escalates the charge and sentence. Federal arson (18 USC 844) increases from 5-20 years (base) to 7-40 years (personal injury) to life or death (death results). Many states have similar injury enhancements.

Wildland and forest arson is treated as a particularly serious offense in western states where wildfires can destroy thousands of acres, homes, and lives. States like California, Oregon, Arizona, Idaho, Colorado, and Montana have specific statutes or enhanced penalties for burning forest land, wildland, crops, or timber. In California, arson of forest land under Penal Code 451(c) carries up to 6 years. In Arizona, burning of wildlands (ARS 13-1706) is a Class 4 felony. In Idaho, arson of forest land (Idaho Code 18-804) is a 3rd degree felony carrying up to 10 years.

Federal arson. The primary federal arson statute is 18 U.S.C. section 844, which has two main subsections:

- 844(f): arson of federal property (buildings, vehicles, property owned or leased by the federal government). Penalty: 5-20 years base, 7-40 years if personal injury results or if there is a substantial risk of injury, and life or the death penalty if death results.

- 844(i): arson of property used in or affecting interstate or foreign commerce. Penalty: mandatory minimum 5 years up to 20 years base, 7-40 years with personal injury, and any term of years up to life or the death penalty if death results. The Supreme Court in Jones v. United States (1999) held that an owner-occupied private residence not used for any commercial purpose falls outside the scope of 844(i), limiting federal prosecution to property with a connection to interstate commerce.

- 844(h): using fire or an explosive to commit any federal felony carries a mandatory consecutive 10-year sentence (20 years for a second conviction).

Federal arson also criminalizes conspiracy (844(n)) with the same penalties as the underlying offense, and defines explosives broadly (844(j)). All federal arson is a felony with mandatory minimum prison sentences — there is no federal misdemeanor arson.

Beyond the prison sentence, an arson conviction carries significant collateral consequences:

Crime of violence classification. In many jurisdictions, arson is classified as a crime of violence or a serious felony. This matters for sentencing enhancements (longer sentences for repeat offenders), parole eligibility (some states require serving 85% of the sentence before parole, as in Oklahoma and New Jersey), and federal sentencing guidelines. In California, arson is a serious felony under Penal Code 1192.7(c), which means a prior arson conviction can be used as a strike under the Three Strikes law.

Firearm rights. In most states, a felony arson conviction results in loss of the right to possess firearms. Federal law (18 USC 922(g)) prohibits any person convicted of a felony from possessing firearms, and arson is a felony in all 51 jurisdictions.

Voting rights. In states that disenfranchise felons (like Mississippi, where arson is specifically listed as a disenfranchising crime in the state constitution), an arson conviction results in loss of the right to vote. Other states restore voting rights after the sentence is completed.

Restitution. Arson restitution can be enormous. Defendants are typically ordered to pay for property damage, firefighting costs (including the cost of multiple fire departments and aerial suppression for wildland fires), investigation costs, and victim assistance. For wildland fires, restitution can reach millions or tens of millions of dollars. In California, a person convicted of wildland arson can be liable for the full cost of suppression.

Insurance fraud overlap. Burning your own property to collect insurance is both arson and insurance fraud. Most states have a separate statute for arson with intent to defraud (e.g., Colorado 18-4-104, Wisconsin 943.04, Maryland 6-105). Prosecutors can charge both arson and insurance fraud, and the fraud charge can carry additional prison time and fines.

Immigration consequences. Arson is an aggravated felony under federal immigration law, which means a non-citizen convicted of arson faces deportation and permanent inadmissibility, with very limited avenues for relief.

If you or someone you know is facing arson charges, take it seriously — arson is a felony in every jurisdiction and can carry decades in prison, or life if anyone was injured or killed. Here is what to do:

1. Get a criminal defense attorney immediately. Arson is a specialized area of criminal law that involves complex fire-science evidence (origin-and-cause investigation, accelerant analysis, burn patterns). You need a lawyer who understands both the criminal law and the fire science. Do not talk to investigators, fire marshals, or insurance adjusters without your attorney present.

2. Do not give statements. Anything you say to police, fire investigators, or insurance investigators can and will be used against you. Politely decline to answer questions and ask for an attorney. Do not consent to searches of your property, vehicle, or devices.

3. Preserve evidence. If you have evidence that the fire was accidental (electrical problems, appliance malfunctions, weather events, lightning), document it. Take photos, save receipts for repairs or maintenance, and note any witnesses. Do not destroy or alter anything — that can lead to obstruction charges.

4. Understand the charge. Ask your attorney what degree of arson you are charged with and what the potential sentence range is. The difference between 1st degree (occupied dwelling, 10-30 years to life) and 3rd degree (property, 1-5 years) is enormous. Your attorney may be able to negotiate a reduction in the degree or a plea to reckless burning (a misdemeanor in some states) if the evidence of malicious intent is weak.

5. Consider defenses. Common arson defenses include: the fire was accidental (no malicious intent); the fire was started by someone else; the fire was caused by a natural event (lightning, spontaneous combustion); the fire was a controlled burn with a permit; you were not present when the fire started; or the investigation was flawed (fire-science methodology has evolved, and older origin-and-cause determinations have been challenged in court).

6. Do not contact the victim or witnesses. Any contact can be construed as witness intimidation or tampering, leading to additional felony charges.

7. Do not post about the fire on social media. Prosecutors and investigators monitor social media, and posts can be used as evidence of intent, consciousness of guilt, or even as confessions.

This is informational only, not legal advice. Arson law is complex and varies by state. Talk to a licensed criminal defense attorney in your jurisdiction for advice about your specific situation.