Most arson convictions occur in state courts and are sentenced under each individual state's arson statutes and sentencing guidelines. Convictions under the federal arson statute fall under the U.S. Sentencing Commission (USSC) guidelines and must adhere to federal statutory minimum and maximum sentences. The federal sentencing guidelines equate arson with the use of explosives and therefore such crimes are usually considered high-level offences for sentencing purposes.
The federal arson statute, 18 U.S.C. Section 844(i), renders any arson or attempted arson a federal crime if it affects interstate or foreign commerce. The arson or attempted arson of any property carries a statutory minimum sentence of 5 years and a maximum of 20 years. If any person is injured in the arson or attempted arson, the statutory minimum is 7 years and maximum is 40 years, and if the fire results in the death of a firefighter or other person the defendant may receive up to life in prison, or even be subject to the death penalty.
The U.S. Sentencing Commission guidelines that govern the crime of arson are found in Chapter 2, Section 2K1.4 of the USSC guidelines, the same guidelines that govern sentencing for the use of explosives. This section applies both to attempted and completed acts of arson.
Base Offense Levels
Federal sentencing guideline calculations begin by determining the base offence level for the crime in question. In the case of arson, the base offence level is 24 (out of a maximum of 43) if the arson created a substantial risk of serious bodily injury and is related to a dwelling or any mass transportation or public facility. The base offence level is 20 if the arson created a substantial risk of serious bodily injury and is related to most other types of property. A lower level of 16 is allotted to acts of arson that target maritime navigation devices. A risk of seriously bodily injury will be found in nearly every arson case, given the inherent danger of uncontrolled fires.
Relation to Other Crimes
In accordance with USSC guidelines Section 2K1.4(b), the base offence level for arson is enhanced by two levels if the fire was set to conceal another crime. An additional two-level enhancement is warranted if the arson occurred on the property of a national cemetery. Pursuant to Section 2K1.4(a)(4) of the guidelines, the prosecution may request, and the court may impose, sentences calculated for the crimes of theft, fraud, or property destruction instead of for arson, and then increase the calculation for that offence level by two points. Prosecutors are likely to make this request when the resulting sentence would be higher than the sentence for arson alone.
Death or Injury
When death or serious bodily injury results from an act of arson, USSC guidelines (section 2K1.4(c)) authorise sentencing according to the guidelines for homicide or assault, which may result in a higher sentence calculation than would be imposed by using the arson sentencing guidelines alone. Increases to these sentences, are permitted when appropriate to the circumstances.
The arson sentence is finally determined by using a sentencing table found in Chapter 5, Part A of the USSC Sentencing Guidelines Manual. First locate the base offence level on the left-hand side of the sentencing table then move across the table to the criminal history category appropriate to the particular defendant. The cabin, or cell, where the arson base offence level and the criminal history category rows intersect indicates the incarceration term in months. If the recommended sentence is outside the statutory minimum to maximum range, then the sentence will be adjusted to fall within this range.
State Arson Sentencing
State courts will look to their own state statutes and sentencing guidelines to sentence defendants convicted of arson. Most states follow the ancient common law rule of considering arson to be, together with murder and rape, the most serious of felony crimes, and so will often impose the maximum allowable sentences.