In the PRLA, Congress required that prisoners filing civil rights lawsuits "with respect to prison conditions" must first exhaust any administrative remedies available to them. In Woodford v. Ngo, decided June 22, the high court decided that if a state prison system makes an administrative appeal available for a limited time and the prisoner fails to use it within that time, then he cannot later bring a civil rights lawsuit in federal court.

This decision raises the possibility that states could use the PRLA to smoke out all challenges to their lethal injection protocols far ahead of any possible execution date. If so, those death row inmates, if any, who really do object to the protocol would be able to challenge it, but they would not be able to use these challenges as eleventh-hour excuses to stay their executions. But can the PRLA really be used this way?

Is an attack on a state's lethal injection protocol "with respect to prison conditions"? The Supreme Court said that other "prison conditions" requirements of the PRLA applied to such cases in Nelson v. Campbell, 541 U.S. 637, 650 (2004). Given that Hill is based on Nelson, there would seem to be little doubt on this point. Federal District Judge Jeremy Fogel, the same judge now considering California's protocol in the Morales case, applied the exhaustion section of the PRLA to an injection claim in Cooper v. Woodford, 2004 U.S. Dist. LEXIS 27418.

Procedurally, a state would be on the firmest ground if it formally and publicly adopted a specific protocol and authorized anyone then sentenced to death to challenge it within a specific time. Those who do not would be barred from challenging it in the future under the Woodford decision. For those who do, the federal civil rights statute of limitation would require them to proceed with their federal suit after completion of the administrative proceeding. For most, that would make the suit too early to be useful as an eleventh-hour strategem.