The 27-year-old white man who is accused of stabbing and killing 18-year-old Nia Wilson at a BART train stop in Oakland, Calif., in July will likely not get hit with hate crime charges—but may still get the death penalty.

On Wednesday, the Alameda County District Attorney’s Office hit John Lee Cowell with a special circumstance charge of “lying in wait.” The charge qualifies Cowell, a convicted felon with a violent record, for the death penalty, the East Bay Times reports.

The “lying in wait” charge can be applied to a crime where a suspect watches a victim immediately before a deadly attack on that person. As the Times writes, “the particular level of planning is considered greater than premeditation and combines with physically waiting.”

Cowell has already been charged with Nia’s murder, as well as the attempted murder of her sister and use of a deadly weapon.

Prosecutors didn’t explain why they added the special circumstance charge, nor did they make clear whether they would seek the death penalty if Cowell is convicted. If they do so, the Times writes, it would be only the second time since 2009 that Alameda’s district attorney pursued the death penalty.

Some suspect the enhanced charge is to compensate for the lack of hate crime charges brought against Cowell. Since the brutal stabbing on July 22, many have believed Cowell’s targeting of the Wilson sisters to have been racially motivated. However, while Cowell’s criminal history is extensive, law enforcement says they’ve found no record of Cowell belonging to a white supremacist group.

As the Washington Post reports, some—including Oakland’s mayor, Libby Schaaf—have called on police to investigate Cowell’s time in federal prison to see if he has any connections to white supremacist gangs, like the Aryan Brotherhood.

Spurred by the case, the Post reports that Oakland’s white elected leaders—Schaaf included—are “considering changing the legal definition of a racially motivated killing, lowering the threshold of evidence needed to bring such charges.”

As Schaaf, an Oakland native, told the Post:

“It raises the question about our legal system and how we apply the rules of evidence.

It may be time to recognize that if there is no explicit racial bias, but there is implicit racial bias, then maybe the burden of proof should shift to the defense.”

While Cowell’s attorney is claiming his client suffers from “severe mental illness” and that his attack was not racially motivated, Wilson’s family has taken its first steps in filing legal action against BART for not protecting Nia and Letifah Wilson.

According to the Daily Californian, the Wilson family filed the claim against the transit agency on Aug. 16, alleging that BART “failed to meet its duty as a common carrier” to protect its passengers. The suit says two weeks before the deadly stabbing, Cowell threatened two passengers on the train, who attempted to report the threats but found no BART personnel present.

The suit also claims Cowell didn’t pay a fare to enter the platform on the day of the stabbings, and that enforcement of this could have prevented the attack.