Methodology
These are the results of a review in October 2021 of the language used in criminal legislation. It surveyed the provisions in the penal codes of all fifty US states.
The crime of arson was selected as the representative topic to examine. The provisions prohibiting arson were extracted from all 50 penal codes and parsed. Results were tabulated to group together similar approaches to language.
The focus is on the tense of the verbs used in the provisions setting out the specification of the offense, the categorization of the offense (for those jurisdictions that use categories), and the description of the punishment to be meted out upon conviction.
Analysis
The penal code of each of the 50 states contains one or more provisions prohibiting arson. No two sets of provisions are identical.
The provisions are composed of up to three elements, as follows:
1. Specification of the offense
In this element the code scopes out the actions that do and do not constitute arson in that state. The length of this element varies from a single sentence to multiple sections describing different degrees of arson.
For the sake of simplicity in the examples below, all the various actions that constitute arson are subsumed under the single generic action of setting fire to a building.
The various approaches to the specification of the offense can be summarized by noting the prevalence of the following formats:
- A person who sets fire to a building is guilty of arson
- A person commits arson when he sets fire to a building
- Whoever does any of the following is guilty of arson: 1. Set fire to a building
2. Categorization of the offense
A state with several classes of offenses — e.g., Class A, Class B, etc., or First degree, Second degree, etc. — may indicate which classes different variations of the crime fall into. Again, for the sake of simplicity in the examples, the categorization will be generically referred to as a Class A Felony.
The categorization of the offence uses one of the following formats:
- Arson is a Class A Felony.
- A person commits arson, a Class A Felony, when he sets fire to a building.
3. Description of the punishment
The element where the punishment is prescribed almost always contains its own verb. For simplicity in the examples, the punishment will be generically set at five years in prison.
The punishment may be set out in a separate sentence. The typical format used is the following:
- Arson is punishable by five years in prison.
In some cases the categorization and punishment appear together in one sentence, for example,
- Arson, a Class A Felony, is punishable by five years in prison.
Sometimes the provisions indicate the categorization, but the punishments for all different categorizations are described elsewhere in the code. Where this is the case, those descriptions were not pursued; in other words, the verb tense of the punishment element was examined only when it appears in the same provision as the specification or categorization (as in the examples above).
Determination of verb tense
The tense of an element is determined by the main verb in that element, for example, the following sentence is taken as present tense:
- Arson is a Class A felony.
The tense of verbs in dependant clauses is not determinative. Take the following example:
- A person who sets fire to a building shall be guilty of arson.
Although the verb “to set” is in the present tense, it sits in a relative clause. The main verb of the sentence is the verb “to be.” Since the main verb is in the future tense, the sentence as a whole is considered to be in the future tense.
Results
The results of the analysis reveal three main patterns:
- All elements in the present tense
- All elements except the punishment in the present tense
- Other combinations
1. All elements in the present tense
In 27 states (54%), all elements are set in the present tense.
The specification of the offense is in the present tense, typically using one of the formats mentioned earlier:
- A person who sets fire to a building is guilty of arson
- A person commits arson when he sets fire to a building
- Whoever does any of the following is guilty of arson: 1. Set fire to a building
The categorization is also in the present tense:
- Arson is a Class A felony
If the punishment appears in the same provision, it also is in the present tense:
- Arson is a Class A felony punishable by five years in prison.
The prohibition around arson in the penal codes of the following states is set entirely in the present tense:
AK, AL, AR, AZ, CA, CO, CT, DE, FL, IN, ME, MI, MO, ND, NE, NH, NJ, NM, NY, OR, SD, TN, TX, UT, WA, WI, WY
2. All elements except the punishment in the present tense
In 13 states (26%), the specification and the categorization are in the present tense, although the punishment is rendered in the future tense.
This combination produces wording such as the following:
- A person who sets fire to a building is guilty of arson, a Class A felony, and shall be sentenced to five years in prison.
The punishment uses one of the following patterns:
- A person convicted of this offense shall be sentenced to five years in prison.
- A person convicted of arson shall be punished by imprisonment for five years.
- The term of imprisonment shall be five years.
In one unique case, the punishment uses the modal “may”:
- Whoever sets fire to a building is guilty of a misdemeanor and may be sentenced to imprisionment…
In another unique case, the punishment uses the modal “must”:
- A person who wilfully…sets fire…to a building…is guilty of the felony of arson in the first degree and, upon conviction, must be imprisoned…
In the provisions on arson in the penal codes of the following states, the specification and the categorization are in the present tense, although the punishment is not:
GA, HI, IA, ID, IL, KS, KY, LA, MN, MT, NV, PA, SC
3. Other combinations
In 10 states (20%), the operative verbs are primarily set in the future tense.
Some example of patterns are as follows:
- A person who sets fire to a house shall be guilty of arson and shall be punished by five years in prison.
- If any person shall wilfully set fire to a house, the same shall constitute the crime of arson.
- No person, by setting fire, shall knowingly do any of the following: 1. Cause harm to a house. Whoever violates this section is guilty of arson.
In one unique case, the specification is supplemented by a prohibition using “may not”
- A person may not willfully and maliciously set fire to a house. A person who violates this section is guilty of the felony of arson and is subject to prison for five years.
The penal codes of the following states contain other combinations:
MA, MD, MS, NC, OH, OK, RI, VA, VT, WV
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